18th amendment

18th Amendment: fissures and confusion it create

Imtiaz Gul

Why should the demand for revisiting the 18th Amendment be misconstrued as an advocacy for
repealing it or reversing the hard-earned provincial autonomy? This posturing hardly takes into
account the fact that although the amendment addressed the long-standing issue of provincial
autonomy in great measure, yet central and provincial governments failed in devising mechanisms
to facilitate the translation of smooth autonomous action at the provincial level and equitable
distribution of resources. A review should ideally result in greater autonomy for the federating units.

In a review of Post-18th Amendment Fiscal Challenges, noted writers and tax lawyers Huzaima
Bukhari and Dr Ikramul Haq point out, “The problems diagnosed by experts (in the post-amendment
scenario) are ambiguity over taxation rights between federation and its units, weak structures, lack
of capacity, competitiveness and efficiency, rent-seeking, violation of the rule of law, non-
acceptance of the norms of fair play and coupled with reckless borrowing and ruthless spending
amidst dismal tax-to-GDP ratio.”

They point out, “The 18th Amendment created fissures in the revenue collection authority of FBR,
resulting in further decline in tax collection because tax on services fell in the provincial domains.
Taxpayers immediately started raising their eyebrows because they had to now face both federal
and provincial tax authorities. All major chambers of commerce expressed their concerns and
showed reservations on the scattered tax collection in the aftermath of the amendment.”

Similarly, in its 2017 policy brief on the amendment, the Research Society of International Law,
Pakistan, said the 18th Amendment represented a remarkably short implementation period for an
instrument designed to make broad, sweeping changes to the constitution and governance
structures in Pakistan. “The sudden constitutional surgery carried out by the 18th Amendment sent
shockwaves throughout the system of governance in Pakistan. Its immediate aftermath was marred
by a period of considerable uncertainty and anxiety between a broad range of stakeholders at the
federal and provincial level and resulted in considerable litigation,” said the brief, underlining the
legal challenges the amendment threw up.

Although not relevant to 18th Amendment, yet the current anti-encroachment drive on the Supreme
Court’s directives illustrates more or less similar dilemmas, and exemplifies the problems we have
faced since the passage of the half-deliberated amendment in April 2010: enforcement of a
law/directive without thinking of an alternative for the destroyed livelihoods. Illegal structures have
been razed but what to do with the consequences of the anti-encroachment drive i.e. tens of
thousands of people losing their livelihoods, adding to the army of the already unemployed all over
Pakistan?

Did the privileged judges – who draw over a million rupees a month in salaries – really give a
consideration to the plight of those who would lose livelihoods as a result of the anti-encroachment
campaign?
The spirit of constitution essentially aims at strengthening the State and serving the people. The
18th Amendment fails in both because political parties in the provinces won’t devolve power. Hence,
the state is being weakened and citizens are not getting their rights in services.

That major political parties themselves dragged their feet on devolution is another bitter reality.
They held local government elections only after the Supreme Court instructed them to do so.

Impact on Oil/Gas Exploration

One case in point is the oil and gas exploration, an area which has remained largely stagnant after
the British Petroleum and Shell wrapped up operations following complications arising out of the
discord between the Centre and the provinces.

Interestingly, the Centre issues licenses for exploration but the allocation of the block rests literally
on the discretion of the provincial land revenue officials i.e. the patwari. So the investors are entirely
dependent on the provincial government. And hence, the departure of Shell and BP from Pakistan as
well as little outside interest in exploration.

Impact on Agriculture:

The case in point here is the Pakistan Oil Seed Development Board, which had regional offices
throughout Pakistan for propagation of oil seed crops. After the 18th Amendment, all the field staff
was transferred to Islamabad, restricting it to the capital territory only, where not even a single acre
of oil seed is grown. All office staff with salaries and vehicles are practically doing nothing in
Islamabad, literally a criminal wastage of time and resource.

The Pakistan Agriculture Research Council (PARC) is another example. It was developed to
coordinate research between provinces and international bodies. They wanted big budgets and not
limited just to policy and coordination. The council therefore put field research stations across the
country, basically duplicating the job of provincial agriculture research institutes. The PARC also
created the National Agriculture Research Council (NARC) at Islamabad with a huge piece of land for
research. Ironically, agriculture research is site-specific because it is linked with the nature, so if a
variety is researched and developed in the climate of Islamabad, it is of no use for the rest of the
country which has nine ecological zones.

The big question staring us all in the face is: have PARC or provincial agricultural departments been
able to raise the per acre yield, at least for the cash crops such as wheat, rice and sugarcane after
the devolution?

What measures did the provincial governments have undertaken in the decade since the devolution
to transform crop patterns and dramatically enhance the per acre yields?

Accepting the logic peddled by political supporters of the 18th Amendment would amount to
equating this piece of legislation to a divine revelation. Also, if we accept this, why should we dismiss
the religio-political parties’ argument on the Blasphemy Laws (Art 295 b and c)? They insist this law,
although inserted into constitution through a legislative process, is sacrosanct and thus
‘untouchable’.
What is the point in the entire legislative and amendment process if you can’t touch and alter laws
that directly affect peoples’ lives? Going by the logic, the entire proceeding of the 27-party
parliamentary committee for the 18th Amendment would be frivolous. It could have simply in a one-
line resolution demanded the restoration of the 1973 Constitution as it existed before General Zia’s
1977 martial law.

Moral: just getting a law or even a constitutional amendment adopted doesn’t necessarily guarantee
the desired results if it is not deliberated and well thought-through.

Revisiting the 18th Amendment

BY YASMEEN AFTAB ALI , (LAST UPDATED OCTOBER 1, 2018)

Did it really help?

All constitutions in Pakistan are based on Act of India 1935. A document by aliens to rule
aliens on fault lines of ethnic divide. The basic fault lines were never corrected in the latter
constitutions. The 18th Amendment ushered in major constitutional changes including taking
away of the right of the president of Pakistan to dissolve the parliament. Out of 342 Members
of National Assembly 292 voted in favour of the 18thAmendment. Well-intended but when
translated into law will go down in history as one of the most devastating pieces of legislation
made.

The Concurrent List was abolished to favour provincial autonomy. Being a federation,
Pakistan has based its administration on many levels including the central or federal
government and the provinces being units connected to the center. Then there are some
countries that are based on one level of government alone, which is the center with no
supporting units. In the latter form, the government is responsible for carrying out all
functions. Opposed to this is the former type having both federal and provincial structures
and both having the right to legislate concurrently. 16 departments were transferred from
federal government to provincial governments under the 18th Amendment. The abolition
weakened the federation without necessarily strengthening the provinces.

Education was one subject devolved at the provincial level. This was done without thinking
through that a) whether the provinces are equipped in terms of teachers, infrastructure,
educationalists, etc, to develop courses and other related necessary base needed to take
advantage and implement this devolution and b) whether all provinces equally have the
aforementioned basic variables in place failing which this inclusion would inevitably lead to
unequal standard of education in different provinces leading to disadvantage of those
provinces lagging behind in many fields CSS being only one of them.

Article 25A was inserted into the constitution: “Right to education: The state shall provide
free and compulsory education to all children of the age of five to 16 years in such manner
as may be determined by law.” The question stands vindicated by a report that states, “But
two years on, the Punjab government has yet to introduce mechanisms for the
implementation of the Article.” The direction to be given by a cohesive national, united
ideology may/can be/has been compromised.
The 18th Amendment has offered nothing to the common man and neither has it managed
to lead to a smoother interaction between the federal and provincial levels

The 18th Amendment created havoc in Pakistan by regulating health to provinces with no
checking authority. The provinces are/were ill equipped to handle this critical area of social
wellbeing and service to people. “The Drug Act of 1976, the law regulating pharmaceutical
sector in the country, and the regulatory structures formed under it for registration,
manufacturing, quality assurance of medicines and adjudication of contraventions, etc, also
does not exist anymore under the 18th Amendment.”

“Pakistan’s markets sell fake pills, capsules, tablets, and syrups of all types, for every type of
ailment,” according to a report by CNN.

When Yousuf Raza Gilani was the prime minister, the World Health Organisation (WHO)
expressed concerns over the devolution of the ministry of health to the provinces via a letter.

“The implementation of the18th amendment required substantial changes in the existing

legal, regulatory and policy frameworks on devolved and shared subjects. About 48 federal
laws were identified which needed amendments to reflect the intent of the 18th amendment.
Rules of Business at federal and provincial levels have been amended and a number of
critical issues have been resolved. However, some issues still remain unsettled because of
the lack of political will, policy disconnects and the absence of evidence-based strategies
hampering the pace and process of transition management.” (Analysis: Five Years of
18th Constitutional Amendment: Federalists Imperatives On Public Policy and Planning
(UNDP In Pakistan Volume 2 Issue)

When responsibilities were signed away by the federation without the infrastructure and
mechanisms in place, the 18th compromised the national interests on many levels.

Provincial autonomy and inclusive-ness in governance should be the corner stone of a

successful political dispensation. One can argue in favour of provincial autonomy however
sans the mechanisms needed to make it work, minus the clarity in policies, route of
operational funding, minus the skills in different fields needed to deliver, minus the skills
needed, minus the will to bring it together at both provincial and federal levels, it is bound to
fail.

It would have been better had the learned minds instead of getting rid of 16 departments in
one go had transferred this in phases, smoothing out the teething problems systematically
as these brilliant minds went along instead of creating a mess.

The 18th Amendment has offered nothing to the common man and neither has it managed to
lead to a smoother interaction between the federal and provincial levels.

Unfortunately, should PTI wish to put the house in order on this front, it is faced with a strong
opposition with the Senate seats being occupied for a while yet, even if a revisit is sought,
one doubts anything much will come of it. Which pretty much leaves us with a constitution
based on Act of India 1935, the Articles included and changed by Gen Zia and the
18th Amendment all joining together to create a recipe for disastrous governance.

18th Amendment: abolishment of concurrent list poses serious challenges to national

identity: PILDAT
APR 12TH, 2018

President Pakistan Institute of Legislative Development and Transparency (PILDAT), Ahmed Bilal
Mehboob Wednesday said that abolishment of Concurrent List under the 18th Constitutional
Amendment has posed serious challenges to national identity and it needs to be restored.

Speaking at Islamabad Policy Research Institute's (IPRI) lecture on "18th Amendment and Challenges
to Federalism" on its 8th anniversary following its passage from the Parliament, he asserted that
serious soul-searching is required to see what it has failed to achieve, whether there are lessons to be
learned to modify it and remove bottlenecks to improve its implementation and make changes. He
said that the amendment is a reality, a political reality, passed unanimously so it cannot be washed
away. But while it does not pose challenges to the federalism since it can be modified the way a state
wants, the 18th Constitutional Amendment does pose problems for the national identity and integrity
of the state of Pakistan, he added.

He agreed with the dissenting note submitted by SM Zaffar, a noted legal expert and the then PML-Q
representative in the parliamentary committee on the 18th Amendment, who stated that by abolishing
the concurrent list, it is tantamount to weakening the federation, adding the Council of Common
Interests (CCI) has emerged as a "super cabinet," or "government within a government." This, he said,
has posed a major challenge to the national identity as curriculum of the education institutions being
an important subject had been devolved to the provinces that lack capacity. "We have no option but to
make local governments more meaningful and effective if the real purpose of the amendment to serve
local people and maintain the integrity and national identity of the country is to be fulfilled," he said.
"A Constitution is not a static document and the impacts of this amendment should be openly debated,
and the Concurrent Legislative List should be immediately restored," he asserted.

Providing the detailed overview of the federalism in the sub-continent, from the 1914 Lucknow Pact,
1919 Montague-Chelmsford Reforms, Jinnah's 14 Points in 1928, Allama Iqbal's visionary 1930
Allahabad address, the 1935 Government of India Act, and Quaid-i-Azam's 1945 interview, he said,
"We should remember that pre-independence India had an entirely different context for federalism,
and how and how much it has been changed for Pakistan post-14 August 1947."

Referring to the Pakistan's post-1971 constitutional evolution, he said that the 18th Amendment did
not take place in a vacuum. Rather the varied perceptions about the reasons for the separation of East
Pakistan, the defacement of the 1973 Constitution, the strains between the centre and provinces,
especially then-NWFP and Balochistan, the 1999 Coup and 17th Amendment, all led to the need for
Constitutional reforms to bring it back to its original 1973 spirit and strengthen its parliamentary-
federal character, he added.

He was also critical of the process and committee make-up which worked on the 18th Amendment
document since over-representation of senators led to the document being dominated by regional
sentiments and diluted the central character of the government. "While certain level of confidentiality
is necessary, complete and utter secrecy was counterproductive and the hurried passage of the
amendment provided no time for substantive and open discussions once it was brought to the
Parliament," he added. He pointed out that since federalism is a delicate compromise between unity
and autonomy so there is a need for mature political ability and legalism for the continuity and
success of this system.

Earlier, President of IPRI Ambassador (retd) Abdul Basit in his welcome address said that 18th
Constitutional Amendment adopted in April 2010 has been a landmark legislation that has provided a
legal framework to enable a democratic devolution that can be termed as a historic achievement to
confer democratic rights to the people of Pakistan.

However, he pointed out that given its important implications for legislative, political and power-
sharing arrangements that exist between the federal and provincial governments, the amendment
places increased capacity demands on the role and functions of the provincial governments and a
greater understanding of and adjustment to this monumental shift on the part of the federation.

18th Amendment unhappiness

THERE has been a lot of noise from some quarters in the federation about wanting to undo
the 18th Amendment to the Constitution, but it is not clear what the noise is all about. The
18th Amendment made almost 100 amendments to the Constitution. Clearly, not all of them
are problematic.

The amendment added a number of basic rights to the Constitution: Article 10-A on the right
to a fair trial, 19-A on the right to information, and 25-A on the right to education. These are
not contentious.

There are amendments regarding judicial appointments. Where we might think the
procedures for judicial appointments and judicial accountability require further changes, the
noise about the 18th Amendment has not been regarding this issue.

Most of the other changes, procedural or substantive, in governance structures, are also not
being discussed. The main pushback against the 18th Amendment seems to be coming from
players at the federal level. The presumption, then, is that somehow the 18th Amendment is
impacting the ability of the federation to do what it wants to do.

In the end, it seems to be all about money. And the problem is not the NFC or devolution.

There are two areas that appear to be problematic. One has to do with devolution and the
other, related but separate, to do with fund-sharing arrangements between the federation
and the provinces: the vertical part of the National Finance Commission formula.

Regarding the vertical part of the NFC formula, some people think that the federation has
reduced its share too much. Some have even argued that the current fiscal deficit issues that
the federation faces has a lot to do with this vertical arrangement in the NFC. Since the
federation keeps too little, while its expenditure needs and commitments are large, it has to
run a deficit. If the basis for the NFC could be redone, the deficit issue might be easier to
address.

The resource division side is integrally tied to devolution as well. The idea for decentralised
and devolved power is accepted by most. For services that have to be locally delivered, why
should decisions about them be taken at the federal or even provincial level? Centralising
power is not only anti-democratic, it is usually inefficient and ineffective as well. This is
especially true for service delivery.

Where a school or local health unit should be based, who should run it and how, and how
should it be monitored are local issues and ought to be handled by empowered local
governments and communities. A few things might require coordination; they might even
gain in efficiency from centralisation (curriculum, testing, book printing, equipment
procurement) but it makes sense to have the bulk of administrative and governance-related
decision-making done at the local level.

Most people in Pakistan agree with the basic principle behind decentralisation and
devolution. There might be some quibbles about details, eg curriculum, but these can easily
be handled through coordination and cannot be and are not arguments for centralisation.

If decentralisation makes sense, and it does for service delivery at least, why would this be a
contested part of the 18th Amendment? The reason is financial again. Service delivery is
expensive. If provinces have to deliver local services, especially health, education, water and
sanitation, and social welfare, and in line with promises that have been made in our
Constitution, or that we have signed up to (eg Sustainable Development Goals), they need
resources. Given our revenue-generation system, this implies significant transfers from the
federation to the provinces.

It is true there has been some talk of the need to have an agreement on the minimum
standards of education and on certain parts of the curriculum. But these issues cannot
provide a justification for centralisation. They can provide reasons for coordination and
dialogue, but not for centralisation — how can the imposition of something that people do
not agree on be better than trying to develop a consensus through dialogue?

In the end, it seems to be all about money. And the problem is not the NFC or the 18th
Amendment. It is the fact that we have a poorly designed and poorly functioning tax system.
All major taxes are with the federation, the tax net is narrow and tax compliance low.
Moreover, there is too much reliance on presumptive, ad hoc and advance deductions, and
provinces do not have and/or have been unable to develop their own source taxation.

So provinces rely on the NFC transfer to meet their obligations under the 18th Amendment.
And the federation feels it is left with too little. But even if we revoke the 18th Amendment,
or the devolution and NFC clauses of the Amendment, how will this address the financial
issues? We will still need to spend as much, if not more, on health, education and other
services. It will be the federation which will have to spend the money; how will this help in
reducing deficits or in giving the federation more fiscal space?

The 18th Amendment and the last NFC agreement had some assumptions about how
revenue generation, at the federal level, was going to evolve. It assumed a certain growth rate
for GDP and tax collection and also an improvement in the tax-to-GDP ratio. This did not
happen. This is the main reason that the federation is feeling extra pressure.

Dividing the existing revenue pie differently between the federation and the provinces is not
going to address or resolve the financial issues facing the country. Nor is it the case that the
federation will be able to cut expenditures on services if it had the power to spend on
education, health etc. Nor will changing the responsibility for services change anything. So,
the issue is not the 18th Amendment. The issue is the poorly designed and poorly functioning
tax system. It is revenue reform that should be the focus and not the 18th Amendment.

The writer is a senior research fellow at the Institute of Development and Economic
Alternatives and an associate professor economic at Lums, Lahore.

Published in Dawn, November 2nd, 2018

Anatomy of 18th Amendment and answers to its critics

ISLAMABAD: A lot of debate has taken place on 18th Constitutional Amendment with a little effort
to educate public about it.

Questions have been raised and repeated instead of finding answers. That the amendment is overall
good nevertheless problematic is an argument being framed. What are the problems has not been
specified and how they are insoluble remains unexplained.

Before discussing what are being framed as “problems” attached with this amendment, highlighting
the solutions it offered deserve merit as it has brought about structural changes in our system like
never before. The 18th Amendment passed in April 2010 is a piece of legislation carried out with
consensus; not even one lawmaker voted against it.

The reason was obvious: all parliamentary parties (17) had representation in Senator Mian Raza
Rabbani-led Parliamentary Committee on Constitutional Reforms (PCCR) including Pakhtunkhwa
Milli Awami Party with only one member in Parliament then.

Suggestion sought from public at large were in addition to parliamentary input; 986 proposals were
received from civil society that took nine months to examine. Each amendment finalised by PCCR
was subject to approval from the leadership of political parties through their representatives in the
committee. This is how consensus was evolved on 104 changes in the Constitution that we have in
form of 18th Amendment.

What is noteworthy in it? There are many things done for the first time, nay, history was made. This
was for the first time that a Parliament refused to validate martial law. The Parliament formed after
1985 elections endorsed the changes made during martial law of Gen Ziaul Haq and Parliament set
up after 2002 elections validated tampering with the Constitution done by Gen Pervez Musharraf.
However, the PPP-led Parliament did entirely opposite.

Musharraf’s Legal Framework Order 2002, its amended versions and 17th Amendment to the
Constitution, were repealed through 18th Amendment. A certain part of Article 270-A was unique in
the constitutional history for it contained the name of a military dictator: “….under which, in
consequence of the result of the referendum held of the 19th day of December, 1984, General
Muhammad Ziaul Haq became the President of Pakistan…” That portion has also been deleted.

In another first, this constitutional amendment has eliminated the chance of any martial law in
future. Although Gen Ayub Khan abrogated the Constitution of 1956, no military dictator has ever
done this with the Constitution of 1973. Instead, it was either suspended or held in abeyance to
capture power whereas Supreme Court of Pakistan validated these adventures.
The 18th Amendment has broadened the definition of treason through changes in Article 6 bringing
in loop the judges who would validate in addition to generals thus ending an era of doctrine of
necessity. Article 6 (2A) reads: “An act of high treason mentioned in clause (1) or clause (2) shall not
be validated by any court including the Supreme Court and a High Court."

As the President of Pakistan’s power of dissolving Parliament and appointing governors have also
been done away with, this is another step taken to discourage those thinking of martial law which
was easily possible in past only through seizing power in the Center. Neither president can dissolve
Parliament without the advice of prime minister nor can governors dissolve provincial assemblies
without the advice of respective chief ministers after 18th Amendment which has heralded a new
era of governance through consensus instead of coercion.

Not only any martial law is out of question, federal government has lost the right of imposing
emergency in any province as was done against the NAP government in now Khyber Pakhtunkhwa
and Balochistan through the imposition of Governor’s Raj during first PPP government, in Sindh
during second PML-N government and in Punjab by fourth PPP government at federal level. Article
173 has been amended that says any such act requires ratification from the respective provincial
assembly within 60 days.

Although there are many other noteworthy amendments wherein the presidential powers have
been curtailed and Parliament has been empowered, the provincial autonomy has courted attention
as well as controversy. On book, this autonomy is a giant step forward as rights over resources have
been delegated to those who own them; federal government has claim over 50 percent of oil and
gas though.

This devolution has also silenced the nationalist forces who would blame Islamabad and to, what
they call, “Punjabi Establishment” as usurper of resources. Now, they are left with none to blame
except their provincial governments in case of any grievance, according to former Senator of ANP, a
nationalist party, Afrasiab Khattak who was part of the constitutional committee.

However, questions are being raised about the incapacity of the provinces to handle this
empowerment. Some have concerns about curriculum as education is a provincial subject like
health. International donors have also voiced objections; mostly they are about dealing with federal
and provincial governments separately.

So much that this was first agenda item when UK Prime Minister David Cameron visited Pakistan in
2011. British Department for International Development (DFID) is leading international agency
investing on education in Pakistan.

The framers of 18th Amendment then tried to address these concerns by offering a liaison office at
federal level, an attempt resisted by bureaucracy which has also seen its powers and perks
diminished after this devolution. Also, the fact remains that DFID had already been working in direct
coordination with the biggest province, Punjab. Dealing with others is also possible.

Incidentally, it was British Parliament that invited the constitutional committee in London for
exchanging notes after the passage of 18th Amendment in order to replicate the provincial
autonomy model amid calls of separation from nationalists of Scotland and Northern Ireland due to
unequal distribution of resources. The committee members were then taken to Belfast, Edinburg,
and Cardiff, the provincial capitals, for discussion with nationalists on devolution.

As far as the issue of curriculum is concerned, 18th Amendment promises a forum to discuss
contentious matter: Inter-Provincial Coordination Committee. Its sub-committee comprising
provincial education ministers and their federal counterpart was also formed in the past for such
matters.

Resolving such issues is not something next to impossible provided there is a spirit of “either
convince or be convinced.” There are examples where provinces voluntarily surrender their powers
to the federal government after 18th Amendment. A consensus was explored on the formation of
Drug Control Authority to devise uniform policy on import of medicine and quality control, Afrasiab
Khattak pointed out.

Likewise, consensus can also be explored over other issues like curriculum, cultural policies and
criminal laws. Similarly, there is a Council of Common Interests (CCI) for distribution of issues
relating Federal Legislative List Part 2 that deals with subjects in joint ownership of federal
government and provincial government. Only eleven meetings were held from 1973 till 2010 which
badly reflects on the successive governments. After 18th Amendment, there is a constitutional
requirement of a CCI meeting every 90 days to be headed by prime minister and attended by chief
ministers, among other members, this obligation continues to be violated.

Another question relating the incapacity of the provinces to use power and resources is concerned,
the capacity issue is not only at provincial level. The situation at federal level is the same.

A visit to any government department is enough to give an idea of the kind of bureaucracy we have.
There is a degeneration everywhere without exception. Mere blaming provincial government is not
the answer; focusing on their training and meritocracy is the only way forward.

Senator Raza Rabbani has answered this question at the last page of his book he wrote on 18th
Amendment and history of constitutionalism: Biography of Pakistani Federalism. “Suppose I agree to
the contention, he writes, that there is lack of capacity in the provinces but the subject of health and
education have remained with the federal government from 1947 till 2010. You tell me what
contributions have been made? Literacy rate is 100 percent? Health coverage is 100 percent?” he
asks.

Capacity is lacking on both sides, he continues. If the question is of capacity, the provinces can have
training sessions. Many subjects which have been devolved to the provinces, their line ministries
were already present at the provincial level, he argues.

Distribution of fiscal resources is one of the most important issues as the 7th National Finance
Commission Award announced in 2009 provided for distributing 57 percent of the funds among
provinces in line with the agreed formula and remaining 43 percent were allocated for the federal
government. This was entirely opposite to what Gen Musharraf did, using his discretion while
announcing 6th NFC award in 2006. He had kept 57 percent for the federal government and
remaining 43 percent diverted to the provinces.
The 7th NFC award was made part of the Constitution through 18th Amendment which set this
formula of 57-43 as a minimum limit as next award may increase but can’t decrease this share. New
award is not being announced due to the fear that provinces will demand increase as share in the
natural resources transferred to them through this 18th Amendment is not being paid.

Instead, the federal government is demanding an increase of three percent to meet defence
expenditure. Although Punjab is among those who are not ready to surrender from the allocated
share, it has separately contributed a substantial amount for the fencing on Pak-Afghan border as
has been confirmed by DG ISPR in his late Wednesday’s press conference.

Meanwhile, Balochistan and Sindh have not yet pressed on the royalty on natural resources which
was due to them after the enforcement of devolution plan.

All these challenges being posed as impossible to resolve can be settled. Changing mindset in line
with the 18th Amendment and patience to provinces’ point of view is what is needed. From now
onward, the consensus will have to evolve through negotiation. Gone are the days when it could be
manufactured through repression.

Pending issues of the 18th Amendment

The Senate of Pakistan, the upper house of parliament, has recently completed its Parliamentary
Year 2016-17. On this occasion, the Senate Secretariat has published a report titled “Report to the
People of Pakistan”, along with other related publications. The timing of launching of these reports is
quite significant, as the historic 18th Constitutional Amendment will also complete its 7 years next
month i.e April 2017.

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Being the upper house of parliament, the Senate represents all federating units and territories of the
country and promotes a feeling of equality and harmony. The Senate in Pakistan, over the years, has
emerged as an essential organ, and a stabilizing factor of the federation. The main objectives of the
creation of the Senate of Pakistan was to give equal representation to all the federating units since
the membership of the National Assembly is based on the population of each province.

During the process of the purification of te 1973 constitution in the year 2010, it was the Senate of
Pakistan which mainly played a role and the 18th Constitutional Amendment was passed
unanimously. The landmark amendment introduced changes to about 36 percent of the Constitution
of Pakistan, as 102 out of 280 articles were amended, added, inserted, substituted or deleted. The
18th Constitutional Amendment has redefined the structural contours of the state through a
paradigm shift from a heavily centralised to a predominately decentralised federation. It is a matter
of great concern that significant federal institutions and implementation mechanisms for devolution
at all levels of government are still undeveloped or non-existent.

It is matter of concern that even after a lapse of six years since the historic 18th Constitutional
Amendment in 2010, its effective implementation is still in limbo. The real fruits of decentralisation,
devolution of power and empowerment of people at grassroots level still could not be availed by
Pakistani citizens. In spite of unanimous decisions of multi-party Constitutional Implementation
Commission headed by Senator Mian Raza Rabbani constituted under Article 270 AA of the
Constitution of the Pakistan, some of the critical issues still remain unresolved. These include: joint
ownership of natural resources; establishment of Commission on Standards in Higher Education and
Research; and policy regulation and supervisory control of Council of Common Interests (CCI) over
the subjects enlisted in the Federal Legislative List Part II, such as railways, standards in higher
education, federal regulatory bodies, census, electricity, railway, legal, medical and professions. The
annual allocations for these subjects, which are under the domain of the CCI, are being made
without review and approval of the CCI.

The CCI is as an important constitutional organ and a central political institution that regulates
competence and settles disputes between federal government and provinces. But, unfortunately,
the commitment to establish a permanent secretariat of the CCI has not yet been fulfilled. About 48
identified federal laws have still not been amended in line with the Constitution of Pakistan.

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The Senate being the custodian of federalism in Pakistan needs to pay attention towards these
pending critical issues immediately. The formation of a special committee on devolved subjects is an
appreciable decision, which is being headed by Senator Mir Kabeer Ahmed who hails from
Balochistan. According to the annual report by Senate of Pakistan, the committee deliberated over
the pending issues of 18th Constitutional Amendment thoroughly in 18 meetings. According to the
findings of the committee, no ministry/division/department is mandated to implement the
important 18th Constitutional Amendment. Devolution Cell established in the Cabinet Division is
only dealing with residual matters including absorption of the employees and other issues. The said
cell is practically redundant at the moment.

According to the annual report of the Senate of Pakistan, the Parliamentary Year 2016-17 can be
termed as year of nurturing and ensuring participatory democracy and federalism. During this
parliamentary year, Senate met 17 times along with 3 joint sittings. The average attendance
remained 67% during 113 working days. During the year, Senate as House of the Federation, tried to
defend the provincial autonomy especially in case of placement of autonomous regulatory
authorities under the line ministries. Chairman Senate Mian Raza Rabbani took notice of the
executive order and gave a detailed ruling on 13th February 2017, terming the step to be against the
spirit of participatory federalism and constitution. The very next day, on the 14th February 2017, the
Lahore High Court also suspended executive order by the federal government.

There is also dire need to enhance the role and powers of Senate as per its resolution dated 13th
February 2017 which seeks amendments to 11 articles of the Constitution dealing with the
relationship between the centre and provinces in the light of spirit of 18th Constitutional
Amendment to provide more autonomy to the federating units of Pakistan. Moreover, amendment
to Article 159 (4) of 1973 Constitution, Senate can also have powers to resolve any dispute between
the federal government and a province.

The decision of inclusion of six members from Senate in the Public Accounts Committee would be
greatly helpful in strengthening the federation of Pakistan, as parliamentarians from smaller
provinces would get more representation for oversight over financial matters of the federal
government.
READ MORE: Intention to audit health facilities in Sindh is political hostility: Murtaza Wahab

On the other hand, the Senate of Pakistan should also play its role towards implementation of the
article 38(g) of the Constitution of Pakistan, which ensures the share of the provinces in all federal
services, including federal autonomous bodies and corporations. It can also assist in addressing the
grievances of smaller provinces regarding the China-Pakistan Economic Corridor and other
development projects announced by federal government.

A proactive role of Senate can be greatly helpful in strengthening Pakistan as a federation through
effective implementation of the 18th Constitutional Amendment and resolving related pending
issues.

18th Amend: Need to discern potential operational problems

LAHORE - Former President Asif Zardari has involved the 18th Amendment in the investigations
against him, thus making it clear that some sections see a problem with the 18th Amendment,
making it appropriate to revisit it, particularly the former power of the President to dismiss the
government.

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Two factors require revisiting it: first, that it has been in operation for some time, and thus it is
possible to discern potential operational problems, and second, that the Pakistan Tehreek-i-Insaf
(PTI) has come to office for the first time, and might need to revise the provisions of the
Constitution. Though the PTI has not indicated that it wants any changes in the Constitution, it
would be counter-intuitive to expect as much tabdeeli as the PTI has promised, without some
constitutional revision.

Such a revision has been ruled out by Federal Information Minister Fawad Chaudhry, but apart from
the exigencies created by the PTI’s experience of office, the feelings of its military backers have to be
kept in mind. One of the big differences made by the 18th Amendment was it abolished the
President’s power to dissolve the National Assembly, first introduced in 1985 as part of the Eighth
Amendment, but which was first abolished, and then reintroduced by the 17th Amendment, which
led to the lifting of the Musharraf martial law.

The presidential power of dissolution was viewed by the military as an essential ‘safety valve’, but by
civilian politicians as unwarranted interference by the military in politics. The President was seen as
the guardian of the military, first under Ziaul Haque (and later Musharraf), by virtue of being COAS,
and under Ghulam Ishaque Khan and Farooq Leghari as the commander-in-chief with the power of
appointing the service chiefs in his discretion.

The use of this ‘safety valve’ meant that while martial law was not imposed, governments were
dismissed by the President. Between 1988 and 1997, no less than four governments were dismissed
by the President, and elections held in which the outgoing government was heavily disadvantaged.
The abolition of the safety valve led to the imposition of martial law in 1999, and now, even with the
18th Amendment having abolished that power, the military continues to play a behind-the-scenes
role, and it was widely accused of arranging for the dismissal of the Nawaz government, and for the
backing of the PTI which saw it achieve office.
Another major impact of the 18th Amendment was the reduction of the role of the federal
government by virtue of the devolution of powers to the provincial governments. Ancillary to this
was the change of name of Khyber Pakhtunkhwa and the spellings of Balochistan and Sindh. There
has been some complaint against this, particularly where it seems the provinces lack the capacity to
exercise the devolved powers. The effect of devolution may have upset centralisers, who believe the
centre should monolithically control all aspects of government, with the provinces merely acting as
implementing agencies, as was the case under the British Raj.

It removed the name of General Zia from the Constitution, as well as indemnities to previous martial
laws. Abolition would mean restoration, which would be a re-introduction of a deviation.

One reason why Zardari might be so sensitive about the 18th Amendment is that it was the fruit of
his first spell in government, and apart from being the product of the consensus of all parties, was
touted as a restoration of the Constitution to its original 1973 form. That Constitution was arguably
that Parliament’s most lasting legislative achievement. It should also be kept in mind that the 18th
Amendment was made possible only because the then government assembled a majority to pass it,
not just in the National Assembly, but also the Senate. An attempt to repeal the 18th Amendment by
the PTI government may see it produce the requisite two-thirds majority in the National Assembly,
but it does not have even a simple majority in the Senate, let alone the needed two-thirds majority.
It will not achieve that majority in the Senate even in 2020, when the next elections take place. The
PPP will thus remain crucial to any constitutional amendment.

If nothing else, the importance of the ‘safety valve’ idea to the PTI’s military backers should be
recognised. Considering that the military has been involved in the drafting of constitutions at least
since 1962 (when Gen Ayub Khan promulgated a Constitution), and considering the persistence of
the ‘safety valve’ (the presidential dissolution power) in the Eighth and 17th Amendments which
were passed to end martial laws, it would be too much to expect the PTI not to introduce the idea.

READ MORE: Intention to audit health facilities in Sindh is political hostility: Murtaza Wahab

If it does so, it would pass an important barrier. So far, political opinion has been unanimous in
rejecting the ‘safety valve’. Even handpicked PMs like Muhammad Khan Junejo and Zafarullah Jamali
were not happy about having it. The PTI would be the first party to take the concept on board, even
though its government would perhaps be the first target of that provision.

18th Amendment — a gain for democracy

Any attempt to roll back the amendment would be damaging for the federation

Shares

Babar Ayaz

NOVEMBER 12, 2018

Punjab used to be the champion of hoarding all powers in the centre, but a positive role played by
PML-N leaders in agreeing, first to the changes in the criteria for distribution of fiscal resources in
the NFC and subsequently agreeing to the expansion of provincial autonomy in the Eighteenth
Amendment has to be noted. It shows that Punjab’s bourgeois leadership resisted the pressure of
the centrist establishment against devolution of powers to the provinces.

The transfer of subjects listed in the concurrent list of the constitution to the provinces was a long-
pending demand of the smaller provinces. The Eighteenth Amendment fulfilled this demand.

Some of the important subjects were transferred from the Federal Legislative List Part 1 to List 2,
which was a good omen. This included the provinces in decision making on the subjects which were
earlier decided unilaterally by the Centre because they were in List 1. But a close look at the
concurrent list of subjects show that the provinces were not be enriched by this change. Most of the
47 subjects mentioned in the list brought no financial gain to the provinces. However, the transfer of
the concurrent list subjects to the provinces added to their responsibilities and financial liabilities. It
was hoped by the provinces that increased allocations under the NFC Award 2009 would help in
meeting this expenditure.

Provinces wanted control over their natural resources and fiscal authority on such taxes, which have
buoyancy and elasticity. The NFC Award dealt with some of these issues. But the most important
victory of the provinces was that their demand to have control over their natural resources including
oil & gas was met half-way in the Eighteenth Amendment. Provinces were supposed to share control
over these natural resources and the territorial waters adjacent to them ‘jointly and equally’ with
the Center. However, this is yet to be implemented.

The transfer of subjects listed in the concurrent list of the constitution to the provinces was a long-
pending demand of the smaller provinces. The 18th Amendment fulfilled this demand

For instance, the law provided that the provinces producing oil and gas would have the first right to
use it but this is not being done. Otherwise, Balochistan and Sindh — which have vast resources of
natural gas — would not be begging for a larger share in the country’s gas resources.

Agreement to rename NWFP as Khyber Pakhtunkhwa settled an old demand of the 73% people
living there. It gave a great psychological comfort to these people and cemented their bond with the
rest of Pakistan.

One of the most important amendments to the constitution was in respect of appointment of judges
to the Supreme Court and the provincial High Courts.

Though the constitution said that the President has to appoint the judges “after consultation with
the CJP,’ the factual position is otherwise. The word ‘consultation’ here has been interpreted by the
Supreme Court of Pakistan in the Al-Jihad case as such, that, the name recommended by the CJP is
binding on the President. What else can you expect if given a chance to decide about one’s own
jurisdiction and power? This was however done on the principle that the independence of judiciary
and separation of judiciary from the executive has to be maintained. So unlike India where a
collegium of five judges of the Supreme Court decide about appointment of a new judge, in Pakistan
it’s one man’s discretion.

In spite of Article 6 of the constitution which says that “any person who abrogates or subverts, or
suspends or holds in abeyance … the constitution by use of force … or any other unconstitutional
means shall be guilty of high treason,” twice the military has over-thrown elected governments and
violated the constitution. And every time it was validated by the Supreme Court of Pakistan. To
check the abetting judiciary, the Eighteenth Amendment added a clause 2(A) which says: “An act of
high treason mentioned in clause (1) or clause (2) shall not be validated by any court including the
Supreme Court and High Court.”

The National Security Council, which had a strong armed forces presence, was also packed-up by the
Eighteenth Amendment. It was created on the army’s demand.

The Eighteenth Amendment is also a milestone as it included a number of human rights articles in
the constitution i.e.: 4 minority seats were added to the strength of the Senate; it guaranteed access
to information to citizens in all public matters; right to free compulsory education to all children of
the ages five to sixteen.

Not used to the smooth evolution of a democratic process, people still ask how the establishment
was in a benevolent mood and allowed its favourite amendments to be deleted from the
constitution. Analysts believe that the policy of reconciliation and consequent consensus among the
political parties mellowed the hawks in the establishment. The army is too involved in fighting the
terrorist’s threat to the security of Pakistan to dictate the politicians whose support it needs in the
on-going war.

The Eighteenth Amendment was indeed another win of democracy in Pakistan, and a defeat of the
advocates of the benevolent dictatorship in the country. Any attempt to roll back the 18th
amendment and the gains of the 7th NFC Award would be dangerous for the federation.

The writer is the author of What’s wrong with Pakistan? And can be reached at
ayazbabar@gmail.com

Published in Daily Times, November 12th 2018.

‘Court’s job to interpret 18th Amendment’

ISLAMABAD: The Chief Justice of Pakistan, Mian Saqib Nisar, on Thursday observed that the
Upper and Lower House of Parliament did not hold any debate before passing the 18th Constitutional
Amendment related to the devolution of powers to the provinces, particularly the parts relating to
health and education sectors, and said the court will interpret it.

"We were handicapped when we were discussing the vires of 18th Amendment as we did not know as
to whether the parliament had debated it before passing it,” the chief justice remarked as a five-
member larger bench of the apex court heard the case relating to the devolution of health and
education sectors after the enactment of the 18th Amendment. The chief justice said debate is
essential for the interpretation of the Constitution. The former chairman Senate, Senator Mian Raza
Rabbani, admitted that although the parliament did not debate the amendment bill, it took nine months
to prepare the draft, adding that advertisements were issued in the media, seeking suggestions from
the public, academia and bar councils, etc.

The Government of Sindh had moved the Supreme Court against the judgment of the Sindh High
Court (SHC) that had declared the transfer and devolution of the Jinnah Postgraduate Medical Centre
(JPMC), National Institute of Cardio-Vascular Diseases (NICVD), National Institute of Child Health
(NICH) and the National Museum to the Sindh government unconstitutional. The Supreme Court
resumed the hearing wherein Farooq H Naek represented the Sindh government and the former
chairman Senate senator Raza Rabbani also appeared before the court. Farooq H Naek submitted that
after the 18th Amendment, the health department came under the ambit of the provincial government
and hospitals were supposed to be under the ambit of the provincial government and the hospitals
were supposed to be run by the Sindh government. He contended that hospitals in general were
neither part of the federal list nor they were on the concurrent list; thus these hospitals were
exclusively in the provincial domain. He recalled that the high court in its judgment had declared that
the transfer of institutions is unconstitutional because these institutions have no relationship with the
concurrent list in view of clauses 8 and 9 of Article 270 AA of the Constitution, inserted by the 18th
Amendment.

Farooq H Naek said the second declaration made by the high court contended that these institutions
does not fall under entries 11 and 12 of part 2 of Federal Legislative List which he said was in his
favour.

“With the enactment of 18th Amendment we are the owners of these institutions,” Naek contended.
The chief justice said they have repeatedly said that Parliament is the supreme law making body,
however, he recalled that when they were discussing the vires of the 18th Amendment bill, they did
not know as to whether the Parliament has debated before passing it.

The chief justice recalled that all over the world the legislature debates a particular law before its
enactment. Justice Ijazul Ahsen observed that in the United States, there is an institution in every state
called Island but it is totally controlled by the federal government. The chief justice said education is
also provincial subject as per 18th Amendment, adding that if the federal government establishes
schools in all the provinces then what will be left for the provinces to deal with and under what law
and logic.

“Geographical boundaries does not matter,” the CJP remarked, and explained that if a building of an
institution is located in a province, it doesn’t mean that it has been transferred to that province.

Chief Justice Saqib Nisar observed that if three is a dire need of establishing cancer hospitals and the
provinces fail to give importance to the issue and when the federal government takes initiative and
work out a plan, allocate the funds and finally when it establishes these hospitals in provinces then
would the provinces claim the ownership of these hospitals? He questioned how is this possible that
the federal government establish hospitals and leave it at the hands of the provinces.

Raza Rabbani submitted that if there is any anomaly, the court may refer the matter to the Parliament
to resolve it. “You have passed the 18th Amendment and now it’s our job to interpret it,” Justice
Ijazul Ahsen told Raza Rabbani.

The hearing of the case will resume today (Friday). Meanwhile, Chief Justice Saqib Nisar remarked
during hearing of a case pertaining to increasing the number of judges in the Islamabad High Court
(IHC) that it has been four months since the incumbent government took over reins of the country, but
it could not pass one bill.

Advocate general Islamabad informed the court that the federal cabinet has accepted
recommendations regarding appointment of judges. Justice Saqib Nisar said he should be informed
through proper channel as to what legislation has been made. He directed the advocate general to
inquire about the matter from secretary law, saying that the high court was unable to function in
current situation.

The chief justice also directed the secretary law to table draft legislation prepared by the government
in the Parliament. Last week, the chief justice had asked the government to look into the matter of
increase in the number of IHC judges, or else the apex court would take a suo motu notice.

Meanwhile, the Supreme Court issued an interim order in the Asghar Khan case. As per details, the
apex court on Dec 31 issued notices to the legal heirs of late Air Marshal Asghar Khan after the
Federal Investigation Agency (FIA) recommended the court to close the case, citing its inability to
collect evidence needed to initiate criminal proceedings.

“Notices have been issued to determine whether money was given to politicians or not,” the interim
order stated. “The statements of witnesses were contradictory,” it said. The order further states,
“Those who were party to the case, are not aware of the receipts nor mode or time of payments.
Related banks did not cooperate with FIA either and did not give the record for the past 24 years.”

A relevant paragraph from the report submitted by the JIT was also included in the top court’s order.
The hearing was adjourned for one week. A three-member bench of the apex court also heard a case
on population control.

Justice Saqib Nisar expressed dissatisfaction on the measures being taken by the federal government
concerning population growth in the country. “This issue is far bigger than the need of dams,” he said,
adding that advertisement launched by the government was not enough to control the population, and
instead an “action plan” was required. Subsequently, he issued strict directives to the government for
formulating the plan till January 14.

“National issues cannot be curbed without controlling the rapid increase in population,” he said,
adding that the state’s resources have been depleting fast, and the land available for agriculture has
been shrinking.

The attorney general informed the bench that a digital media-run awareness campaign was underway,
and sought more time for implementation of certain effective measures in this regard. The health
secretary informed the bench that two of the provinces have already formulated population control
programmes.

The court adjourned the hearing till January 14.

In another case, the chief justice rejected the CDA and Ministry Of Defence's explanation on why the
Shahra-e-Suharwardy at Aabpara junction remains closed despite court orders. The ministry of
defence's representative told the apex court that it had handed over the road to the Capital
Development Authority (CDA) but that some maintenance work was still going on.

CDA's director roads appraised the court that one side of the road was given to the CDA but that the
other was kept by the ministry due to security concerns. "Since double-side traffic cannot flow
through a single side, we are expanding the road," said the CDA official.

"It means that our orders were not acted upon," an Justice Saqib Nisar remarked. The court directed
the CDA to submit an application stating that it has not been given the control of both the sides of the
road and also attach pictures with it. The Supreme Court had taken notice of the sealing off of the
Shahra-i-Suharwardy at Aabpara junction in March last year.
Eighteenth Amendment adds confusion to the taxation system: Pakistan Economy Watch

By

admin

September 24, 2018

September 24, 2018 (MLN): Chairman of The Pakistan Economy Watch (PEW), Brig, Muhammad
Aslam Khan (Retd.) on Sunday pronounced the Eighteenth Amendment of the Constitution as having
an inefficient impact on revenue generation within the country.

On Sunday September 23rd 2018, Brig. Khan said that the Eighteenth Amendment of the constitution
has added to confusion in the taxation system.

“It has divided taxation system in an unnatural way hampering documentation of the economy,
helping the undocumented economy and increasing the cost of doing business for the business
community,” he added.

The amendment has resulted in a unique Value Added Tax (VAT) in Pakistan, in which goods are
taxed by federal authorities while services are taxed by the provincial authorities. However, federal
and provincial revenue authorities have their own conflicting definitions for goods and services.

Raising further objections to the amendment, he said that the VAT is collected by a single authority in
all the countries except for Pakistan where the tax on services gathered is by provinces, some of
whom are facing lack of relevant laws, human resources, paraphernalia, and ability.

He underlined the consequences of implication of the amendment, saying that, “the capacity
constraints have resulted in low tax collection which has a negative impact on the overall collection.

On the occasion, Dr. Murtaza Mughal said that the orchestrators of the 18th Amendment were not
concerned about the welfare of the masses. They were concerned about politics otherwise corrective
measures would have been taken after the realization of the devastating consequences of the move on
dozens of sectors.

He noted that a country can never progress without a just and sound VAT, therefore, the incumbent
government must take corrective measures.

Is the 18th Amendment serving education?

By Aroosa Shaukat

Published: December 29, 2013

Talks of setting up a national curriculum commission at the federal level have been
in the pipeline for a few months now. But a recent statement from the federal
minister of inter-provincial coordination, regarding giving curriculum development
back to the centre, points towards absolute confusion.
In post-Eighteenth Amendment Pakistan, where the country’s leadership keeps selling the
idea of a successful ‘devolution’ to provinces, the argument of handing back the curriculum
to the federation seems paradoxical. Despite this, a 2006 national curriculum has been in
existence, albeit lacking due implementation by provinces, each of which is working at a
unique pace at implementing it.

In addition, Punjab, the largest province of the country, has already established a Punjab
Curriculum Authority — the only one of its kind in Pakistan. Since May 2013, the authority
has been functioning under the Punjab Curriculum Authority Act 2012, officially claiming
that its curriculum development is in line with 2006 national curriculum.

So, where exactly is the conflict? It lies in the fact that there is a lack of coordination
amongst various provinces. And since there is no authority at the national level that
addresses the situation at the provincial level, the picture seems ugly and highly confusing.
This inertia, or lack thereof, calls for the need to consolidate at the federal level to ensure,
what is being termed as ‘uniformity’ in the curriculums of the four provinces. In this
chaotic system of delays and general vagueness, a regulatory body sensitive to needs,
concerns and diversity at the provincial level could alleviate these growing concerns. But
that regulatory body needs to be just that — and not one that demands absolute power. For
any such authority-driven body will be rejected by the provinces, which have just recently
begun to establish their individual power and identity through devolution. Also, any such
exercise of handing curriculum back to the centre will render the legal exercise of passing
the Eighteenth Amendment useless.

In the name of national cohesion and national identity, if such an exercise has to be carried
out, it should be sensitive to diversity and not be confused with ensuring quality and
uniformity. Provinces need to be given their space. Content and quality can be regulated by
the centre by involving provincial stakeholders.

Published in The Express Tribune, December 29th, 2013.

18th Amendment: Implications for Provincial Autonomy and Governance

Mr. Zafarullah Khan, Executive Director, Centre for Civic Education was invited by CPPG to deliver a
talk on 18th Amendment: Implications for Provincial Autonomy and Governanceon April 14, 2014,
and share his experiences of deep involvement in the discussions regarding the 18th Amendment to
the constitution of Pakistan.

han began by stating that an analysis of the 18th Amendment required exploring the issue of
‘provincial autonomy’ which had defined the politics of the region. The 1947 Partition happened in
part because autonomy was denied to the provinces, and all fourteen points in the Pakistan
Resolution reflected the aspiration for provincial autonomy. Similarly, the six points of Sheikh Mujib-
ur- Rehman and the unfortunate events of 1971 were again about the denial of provincial autonomy.

The political history of Pakistan had been characterized by two competing tendencies of
centralization and decentralization. For instance, seven out of the twenty two point consensus
articulated by the ulema of various schools of thought in 1951 related to the centralization of state
by denying ethnicity, propagating a presidential system and unitary form of government with
provinces as administrative units. These points were tried in the Ayub Khan government, while
General Zia even excluded the possible role of political parties in the governance architecture by
taking a cue from the Ansari Commission Report. On the other hand, the political class had always
demanded greater provincial autonomy whether it was the 21 points of the Jugtoo Front, the MRD
Declaration or the Charter of Democracy (CoD). He further clarified the difference between
‘decentralization’ and ‘devolution’, stating that while decentralization meant the centre assigning
certain powers and jurisdictions to constituent units, devolution was a constitutionally delineated
allocation of powers to various players of the government.

Discussing the constitution, he stated that there was a lack of protection of rights, and a general
disbelief in the Constitution of Pakistan as 52% of our national existence had passed without a
constitution or one diluted by PCOs etc. A country’s constitution could be placed under three
categories: a legal document, a collection of traditions or a political document. The overall
constitutionalism in the Sub-continent leaned towards a legal document and could be called the
“lawyer’s constitution”, which was also the case in Pakistan where lawyers were the prevailing
professionals who drafted the document from the first version to the last one in 2010, when the
18th Amendment was passed. Thus, critics had argued that Pakistan’s constitution gave legal
solutions to political issues leading successive governments to interpret it in their own way: rulers
have circumvented it, military regimes have made it convenient, religious parties indicate its lack of
adherence to Sharia, and secular groups find it too Islamic. However, the consensus constitution and
the way it was manipulated had hardly been a topic of debate in Pakistan, even though sanctity of
the constitution was such that even a misspelling required a 2/3 majority to rectify it.

“A country’s constitution could be placed under three categories: a legal document, a collection of
traditions or a political document.”

Khan then specifically concentrated on the process by which the 18th Amendment had come about.
Since 1947, Pakistan had been involved in either active or dormant conflicts leading to
disequilibrium in civil-military relations and a divided polity along ethnic, religious and sectarian
lines. However, the 38-point Charter of Democracy (CoD), signed on May 14, 2006 between two
parties with a history of political confrontation was a unique document because of its public pledge
to support democracy. After the 2008 elections, while no party could muster simple majority in the
Parliament, the consensus on the CoD stayed intact. The Nine points of the CoD required a
constitutional amendment but only half could be achieved through the 18th, 19th and 20th
Amendments. The promised creation of Federal Constitutional Courts, non appointment of PCO
judges, and merging FATA with NWFP did not materialize while all indemnities and savings
introduced by the military regimes in the constitution were reviewed, however only few were
removed. Similarly, the five points requiring new institutions such as the Truth and Reconciliation
Commission, a Commission on Kargil, a National Democracy Commission for Civic Education, and a
commission to review the legitimacy of land allotments to the military were not pursued. While, six
of eleven points which required laws, and 6.5 of 10 points requiring executive actions and policy
reforms were achieved. Issues left out were reforms on pro-poor policy, citizen-centric governance
and a code of conduct.
“…38-point Charter of Democracy (CoD), signed on May 14, 2006 between two parties with a history
of political confrontation was a unique document because of its public pledge to support democracy.”

It is pertinent to note that during the PPP led coalition government; three tools were put in place
that boosted provincial autonomy. First, the political class came up with the 7th National Finance
Commission (NFC) Award, which not only increased the provincial share, but also introduced for the
first time, a multi-sectoral formula for resource distribution, and further gave premiums to certain
provinces. For example, inverse population density was included among the criteria; Khyber
Pakhtunkhwa received a 1% premium for conflict losses while Baluchistan got a bigger share as part
of “Aghaaz-e-Huqooq”. Second, a Parliamentary Committee on National Security was formed, and
finally, a Parliamentary Committee on Constitutional Reforms was set up in light of the Charter of
Democracy.

Khan argued that the deliberative process for the 18th Constitutional Amendment was as intense as
the formulation of the 1973 Constitution. For the 18th Amendment, initially a consensus was
achieved on reviewing the entire constitution. Further, the government reviewed around 981 policy
papers, recommendations and suggestions, and around ninety one private member bills were
considered as suggestions. The committee met for nine months over seventy seven meetings, and
there were around twenty six opposition dominated functional members.

In comparison, the 1973 constitutional committee had twenty five members led by Mahmud Ali
Kasuri and Abdul Hafiz Pirzada, which met forty eight times to draft the constitution with eight notes
of dissent. This initially resulted in constitutional accords, which acted as a blue print for the future
constitution. However for the 18th Amendment, the Charter came before the process. Additionally,
the 1973 committee had three women as members as opposed to no women or minority
representation in the 18th Amendment committee.

The Committee’s outcome included the amendment itself which introduced more than 100 articles
changing 34% of the constitution, additional constitutional reforms, deletion of two schedules
including presidential protection, and eleven recommendations for the executive including FATA and
civil services reforms. For the 18th Amendment, an Implementation Commission (IC) was constituted
which concerned itself with responsibilities that needed to be transferred to the provinces after the
abolition of the concurrent list. The IC was constitutionally time bound and met its constitutional
deadline on 30 June 2011, following which the nation celebrated provincial autonomy.

Khan referred to the 18th Amendment as the “New Constitutional Software of Pakistan”, which led
to amendments in half of the 34 articles related to provincial autonomy. In essence, it had re-written
the federalprovincial pact and was different from other legislative, administrative and fiscal reforms
in the sense that it had originated from within unlike most donor pushed reforms. The 18th
Amendment had also introduced the unique concept of “institutionalized powers” by giving
parliament the authority instead of the President or Prime Minister to determine the number of
ministers; to ensure that the Council of Common Interests and National Economic Council offer
annual reports; to review candidates for the appointment of judges, and to determine NFC’s share in
terms of percentage. Further, the Election Commission could not exist in its absence, and aspects
like caretaker governments, referenda or new commissions such as the National Commission on the
Status of Women (NCSW) and National Commission for Human Rights (NCHR) must also follow due
process with the parliament
The 18th Amendment had empowered the provinces, giving them a constitutional voice, whereby
the federal government could not impose emergency without the consent of the provincial
government. Further, Article 140-A was introduced setting minimum standards for the
establishment of local government bodies by the provinces, and fundamental rights such as the right
to fair trial, right to education and right to information were expanded.

“…the amendment introduced more than 100 articles changing 34% of the constitution,”

In conclusion, Khan discussed the federal-provincial relations in the context of social services
provision and indicated two models in vogue. The “welfare model” where services were funded by
taxpayers, and the “liberal model”, where consumers paid fees for services. Though major social,
economic and cultural rights were part of the “principles of policy”, the constitutional design fault
line or ‘catch’ was that the provision of these rights was subject to the availability of resources. The
policy domain in this regard was either allocated or defined in the constitution or was joined-up
through concurrent mechanisms. However in Pakistan, governance, revenues, institutions, ideology
and policy all came from Islamabad, and the social sector had been an ignored priority because we
had followed a “federally planned and provincially executed” system of development. This had led to
donor dependency, and underutilization of development budget as a Planning Commission report
had revealed up to 80% underutilization every year resulting in disappointing social indicators and
low levels of human development. For instance, devolution of education was contested by few
political parties even though Article 147 had provisions whereby a province could ask the Centre to
carry out certain jobs on its behalf & vice versa. Further, even though the 18th Amendment made
the right to education a fundamental right, only the federal capital and Sindh had passed this
legislation. While, Sindh and Punjab had created Provincial Higher Education Commissions, only
Punjab had established its own curriculum authority.

Khan articulated the need to understand that this was a transitional phase of devolution, and
supporting institutions had been set up including a Special Committee of the Senate, a Standing
Committee of the CCI and a Prime Minister’s Special Committee. He argued that the parliament had
done its work and now it was time for the executive to do its share. The parliament had respected
the court’s short order and passed the 19th Amendment. It had similarly strengthened the Election
Commission of Pakistan and caretaker system through the 20th Amendment. He further added that
it was was critical that the Population Census, which was pending since 2008 and formed the basis
for redistribution of economic and political wealth among provinces was executed to push for the
8th NFC Award. Further, the cost of devolution was high and to facilitate it, a culture of hand holding
was needed between the Centre and the provinces. In case of a dispute between the federation and
provinces, the Supreme Court was the adjudication power.

“…it had re-written the federal-provincial pact and was different from other legislative,
administrative and fiscal reforms in the sense that it had originated from within unlike most donor
pushed reforms.”

The talk was followed by a Q&A session. Responding to criticism of the in-camera method of
accomplishing the 18th Amendment, Khan said that it was the decision of the committee to restrict
every single point from being discussed and trivialized by the media. The two points that did come
out in the public sphere such as the conflict on the appointment of judges and the renaming of
NWFP verified the committee’s concerns. Against the criticism that the 18th Amendment was not
properly debated as both National Assembly and Senate took 4-5 days to pass it, he stated that the
committee’s point of view was that party representatives were responsible for bringing back
feedback from their respective party. So if there was no culture of party meetings, then maybe the
issue lied somewhere else. Further, committee members and their associated parties were asked to
prepare position papers to take parties and parliamentarians along.

When asked if he foresaw a decline in governance due to devolution and lack of provincial capacity,
Khan remarked that in fact the devolved responsibilities were of areas whose implementation was
already existing with the provinces. Thus, policy competence was the only new requirement, and
probably an area for human resource investment.

“In case of a dispute between the federation and provinces, the Supreme Court was the adjudication
power.”

Answering a question regarding the difference between social contract and a legal constitution, and
whether Pakistan really had a social contract, Khan responded that sometimes a social contract
evolved into a constitution. He stated that we had a weak contract, and a legal constitution which
should be a political one at least in terms of affirming fundamental rights. However, our constitution
did have the potential to graduate into a social contract.

When asked about his views on shifting some roles of the cabinet to the CCI, he wished that this
issue was taken up by a province rather than an individual litigant in the High Court. The legislative
competence and legal design lied with the federal government, however institutional design was the
domain where provinces would have a say. Thus, there could be contested views between the
federation and provinces, and Khyber Pakhtunkhwa had submitted a summary that because of joint
ownership of oil and gas, provinces should also have representation on the OGDC board.

Answering a question regarding Article 91, whether the Prime Minister could be non-Muslim, Khan
stated that the committee applied seven filters when looking at each clause: transparency
(minimizing individual discretion), strengthening parliament and provincial assemblies, provincial
autonomy, independence of judiciary, strengthening fundamental rights, questions of merit and
good governance and strengthening of institutions. But it did not take up ideological debates as
religious parties threatened not to participate.

On the question of why local governments didn’t have the same status as the other two tiers of
government, Khan remarked that the 17th Amendment was retained in this regard while a
requirement for the Election Commission to hold elections was added. Unfortunately the local
government system had been used as a ladder of legitimacy by military regimes and thus the
political class was quite allergic to it. Additionally, it was the attraction of awarding contracts, as
MNAs got their own development funds and thus had little interest in local government. When this
equation was changed during Musharraf’s time, seven MNAs had instead opted to become District
Nazim. However, he stressed the importance of local government by stating that the transactional
relationship of citizens with governance happened at the local level, and thus cynicism regarding the
constitution and democracy required a political strengthening of local government.

The backdrop in which the 18th Amendment was passed — I

The most important gain of the proposed amendments was that the centre has ceded more
autonomy to the provinces

26

Shares

Babar Ayaz

NOVEMBER 1, 2018

Once again the strong centre lobbies are active to roll back the gains of the Eighteenth Amendment.
The Eighteenth Amendment was the mother of all amendments because through this one
amendment, over a 100 clauses of the constitution were changed. It was a major attempt to solve
the provincial autonomy conundrum which has marred the country’s constitutional history and had
created bad blood between the federating units.

To understand the significance and implication of the “Constitution (Eighteenth Amendment) Act,
2010” one has to briefly recap the chequered constitutional history of Pakistan. The first constituent
assembly took seven years and when it nearly completed the draft constitution, the Governor
General dissolved the assembly. Finally after nine years of its inception, Pakistan’s second
constituent assembly passed a constitution in March 1956, adopting the parliamentary system.
These nine years the country was ruled on the basis of Government of India Act, 1935.

Before adopting the 1956, constitution the provincial rights were trampled by the government in
1955, when it merged four provinces of West Pakistan into one unit. The devious motive was to
claim parity with East Pakistan. But this constitution was abrogated by General Ayub Khan who
declared Martial Law in the country in October 1958. When he needed to lift the Martial Law, he
brought in his own constitution in 1962, with the Presidential form of government inspired by the
American system.

Ayub Khan was replaced by General Yahya Khan, who promised to hold the elections and
conceded to the major demands — of the people’s movement — by promising a parliamentary
democracy and restoration of the four provinces of West Pakistan. After the election, the National
Assembly was supposed to give a new constitution within a year. But reluctance of the Pakistani
establishment and Zulfikar Ali Bhutto to accept the six points of Awami League (AL) leader Sheikh
Mujibur Rehman, unleashed a liberation movement in East Pakistan. AL was demanding a more
provincial autonomy. After the liberation of Bangladesh, Bhutto took over and managed to give a
consensus Constitution in 1973.

Bhutto was removed by General Ziaul Haq in 1977, and once again Martial Law was imposed. Hence
all fundamental rights given in the 1973, constitution were held in ‘abeyance.’ When he restored the
constitution in 1985, the Eighth Amendment was introduced to validate his rule. This transferred
most of the prime minister’s powers to the president. For future military interventions without
resorting to Martial Law he opened a burglar’s window in the constitution by inserting Article 58 (2)
and 2(B). This gave constitutional power to President General Zia, to dissolve the National Assembly
and oust the government at his discretion. This became the most controversial clause of the
constitution.

It was first used by General Zia for dismissing the government of Mohammed Khan Junejo in 1988. It
was invoked by the establishment to sack Benazir Bhutto and Nawaz Sharif governments twice in the
nineties. In the last stint Nawaz Sharif had come to power with a ‘heavy mandate’ and removed this
clause from the constitution through an amendment. So when Musharraf led a coup against him in
October 1999, he had to come in directly as the “so-called safety valve of Article 58 (2) and 2 (B)” (as
the establishment likes to call it) was not available for ambushing on an elected government.

To legitimise his rule he further mutilated the constitution by bringing in the Legal Framework Order,
2002 and the Seventeenth Amendment 2003. This amendment increased the powers of the
president and validated all the actions of Musharraf since his take-over in 1999. However, the
Seventeenth Amendment had some positive features also, like increase in the reserved seats for
women in the National and Provincial assemblies and in local councils; lowering the voting age to 18
years; abolition of separate electorate system for the minorities; and increase in National and
Provincial Assemblies seats.

The Eighth Amendment became the most controversial clause of the constitution. It was first used by
General Zia for dismissing the government of Mohammed Khan Junejo in 1988. It was invoked by the
establishment to sack Benazir Bhutto and Nawaz Sharif governments twice in the nineties

It was in this political setting that Benazir Bhutto and Nawaz Sharif, each having been bitten twice
by the military establishment, met in London in May 2005, and decided to bury their hatchets. They
signed a Charter of Democracy (CoD) underlining: “that the military dictatorship and the nation
cannot co-exist — as military involvement adversely affects the economy and the democratic
institutions as well as the defence capabilities, and the integrity of the country — the nation needs a
new direction, different from a militaristic and regimental approach of the Bonapartist regimes.”

Both the leaders reaffirmed in the CoD their commitment to undiluted democracy, decentralisation
and devolution of power, maximum provincial autonomy, empowerment of the people at the
grassroots level, a free and independent media, an independent judiciary and settlement of disputes
with the neighbours through peaceful means. They pledged cleansing the 1973, constitution from
the amendments made by the military rulers, particularly repealing of the Seventeenth Amendment
of Musharraf. Benazir Bhutto and Nawaz Sharif were also keen to remove the article from the
constitution which barred any elected member to be the prime minister of the country for the third
time. Musharraf had inserted this clause in the constitution to keep both the popular leaders of the
country out of power, even if their party won the election.
Once the PPP-led coalition came into power Nawaz Sharif’s Pakistan Muslim League started pressing
for the implementation of the CoD. His contention was that the Seventeenth Amendment should be
repealed right away. But the PPP-led coalition wisely linked deletion of disputed clauses of the
Seventeenth Amendment with the issue of provincial autonomy and the demand of the NWFP
government that their province should be renamed as Pakhtunkhwa.

As in most of the democracies in the world the regional, ethnic leadership has emerged much
stronger in Pakistan in the last two decades. The political future of the region is that no national
party would be able to form a government without the support of the regional parties. This trend
has strengthened the centrifugal forces in Pakistan also, who demand more autonomy for the
federating units. These regional parties had insisted that the Eighteenth Amendment should deal
with the provincial autonomy issues also because they were more important to them.

To achieve these objectives a Parliamentary Committee for Constitutional Reforms (PCCR) was
formed with the representation of all political parties, which have presence in the two houses of the
parliament. This committee was criticised for taking too long, but it did the historic job of
introducing 102 amendments in the Constitution of Pakistan, all rolled up in the jumbo Eighteenth
Amendment. The political dimension of this momentous event is that a consensus document was
approved unanimously by the National Assembly amply; proving that democracy can work in
Pakistan. It also shows that in a country where extremists have resorted to terrorism, the majority of
the people are moderate and believe in accommodating each other’s views in the democratic spirit.

This historic amendment has restored the Parliamentary system, which was distorted into a quasi-
president system through the Eighth and Seventeenth Amendments by the military dictators. At the
very outset the Eighteenth Amendment first repealed the Legal Framework Order 2002 and
Seventeenth Amendment 2003, instead of accepting them as part of the constitution. In the past the
amendments introduced by the dictators were accepted as a part of the constitution by the
democratic government and only some controversial articles and clauses were deleted or changed.

The most important gain of the proposed amendments was that the Centre has ceded more
autonomy to the provinces. This strengthened the federation, as its units were more satisfied with
the new division of powers. Undoubtedly there were still grumblings from the nationalist forces in
smaller provinces, but these amendments coupled with the National Finance Commission Award
(NFC) helped in assuaging the nationalist forces of smaller provinces.

In spite of the Eighteenth amendment, some of the powers that were supposed to be transferred to
provinces are being held back by the reluctant federal government.

The writer is the author of What’s wrong with Pakistan? And can be reached at
ayazbabar@gmail.com

Published in Daily Times, November 1st 2018.

THE 18TH AMENDMENT DEBATE IN PAKISTAN

January 2, 2019 |
This essay is in response to the current national discourse on a piece of legislation known as 18th
Amendment. The opinion on the utility of this Amendment is divided. With this contribution by our
valued contributing writer Yasmeen Aftab Ali, CRSS wants to initiate, and contribute to, the current
debate and would welcome input/responses from readers.

When it comes to Pakistan’s constitutional history, the “core” of all our constitutions can be found in
the Act of India 1935. This was a document “by aliens to rule aliens on the fault lines of ethnic
divide”. However, the basic fault lines were never corrected in the later constitutions. Then, the
“18th Amendment” ushered in major constitutional changes; including taking away of the right of the
President of Pakistan to dissolve the parliament. Even though well-intended, but when translated into
law, the Amendment might go down in history as one of the most devastating pieces of legislation
enacted in the country.

18th Amendment – A Background

Passed on April 8, 2010, the 18th Amendment aimed at taking away the powers of the President to
dissolve the Parliament. A brief introduction to the Constitutional history is needed to comprehend the
change. The Act of India 1935 served as the first constituent document of Pakistan, dividing Pakistan
on ethnic grounds thereby creating the fault lines that have somewhat existed to date.

The Constitutions of both 1956 and 1962 were abrogated. In October 1958, President Iskandar Mirza
abrogated the Constitution. Then, the Constitution of Pakistan 1962 had a very short life and was
abrogated in 1969 and the power passed on to General Yahya Khan. Yahya abolished the one-unit
system opting for holding general elections on one-man one-vote basis.

It was under General Zia-ul-Haq that the right of the President to dissolve the President by enacting
the 8th Amendment was inserted in the Constitution. Removed by Nawaz Sharif during his second
stint as the Prime Minister, the right found its way back during the reign of General Pervez Musharraf.

The 18th Amendment brought about major changes in the Constitution of Pakistan 1973, including
taking away the right of President of Pakistan to dissolve the Parliament. However, the
18th Amendment was much more expansive in nature, changing the very face of the governance
structures.

The Constitution of Pakistan 1973 was created in a backdrop of bloodshed and the country splitting
into two in 1971. The atmosphere was one of despair. Essentially, the Constitution laid emphasis on
being based on Islamic principles. It laid emphasis on being a Federal Parliamentary based
instrument. It laid emphasis on provincial autonomy. It laid emphasis on supremacy of Judiciary. It
also laid emphasis on Fundamental Rights. Unfortunately, it continued to flirt with the fault lines laid
down in The Government of India Act 1935.

The Constitution of 1973 changed face when 8th and 17th Constitutional Amendments found a way
in. The changes inflicted havoc upon the democratic structure of the document centralizing power at
the expense of provincial autonomy.

The nation then saw the birth of the Charter of Democracy in 2006 – a document signed by late
Benazir Bhutto and Nawaz Sharif in year 2006 followed by an All Parties Conference where members
pledged struggle against Musharraf to establish a democratic order in the country.
Movement to implement ‘Rule of Law’ gained momentum, leading to ouster of General Musharraf
from power. The then President Asif Ali Zardari constituted a Special Committee of Parliament to
suggest Constitutional amendments not only to stop abrogation of the Constitution but also to create
laws so that different provinces may be free to manage the issues and needs unique to their province
with greater freedom to undertake decisions.

The changes, however, were not well analysed. The short-sighted formation of the Amendment is
briefly but succinctly touched upon in a Dawn Editorial:

“Oddly, our parliamentarians didn’t see it fit to address even those of Gen Zia’s clauses that directly
impact them: the qualification and disqualification criteria in articles 62 and 63 that have been infused
with an ‘Islamic’ spirit. And stranger yet for a federal government formed by a coalition of the
country’s most secular parties, the clause dealing with the prime minister’s election has been amended
to make only Muslim members of the National Assembly eligible as candidates. True, the oath of
office that the prime minister has to take (set out in the third schedule of the constitution) has always
made clear that he/she has to be a Muslim and, realistically speaking, there is a remote chance of a
non-Muslim candidate emerging for the prime minister’s slot. But it is an odd message to reinforce:
don’t bother applying, you are second-class citizens. That is what the government seems to have told
the country’s religious minorities.

Perhaps the government was afraid that visiting the Islamic clauses issue in this round of
constitutional change would have made the whole package controversial and jeopardize the repeal of
the 17th Amendment and the enhancement of provincial autonomy — the key demands as we speak.
Going forward though this should be less of a concern. If it means taking on the fringe, ultra-
conservative elements in politics and society, then so be it. There is something terribly peculiar about
the argument that a military general who toppled a government and executed a prime minister before
disfiguring the constitution drawn up by the country’s elected representatives could be introducing
‘God’s laws’ which by definition are sacrosanct and untouchable. Gen Zia exploited religion in the
most cynical and destructive way possible to prolong his hold on power. Parliament must undo the
legacy of Gen Zia, and to do so it must re-examine the Hudood and blasphemy laws too” (April 10,
2014).

Whereas there were many changes made in form of the 18th Amendment, the basic structures of
Article 62 and 63 was left untouched.

Out of 342 Members of National Assembly, 292 voted in favour of the 18th Amendment. The
Amendment brought about major structural changes in the Constitution:

It conferred powers upon the Prime Minister that he did not have making him a powerful Head.

It turned the President into a toothless tiger.

It allowed the Prime Minister to hold the seat more than two times largely seen as facilitation for
Nawaz Sharif to become Prime Minister a third time.

It took away right from the courts to endorse Constitution being suspended (as happened when
Musharraf taking power where few judges opposed, and many took oath under the PCO)

It took away right of the President to impose emergency rule in any province or dissolve Parliament
until with the concurrence of the Prime Minister.
Appointments of Chiefs of Army, Navy, Air force, Chairman Joint Chiefs of Staff Committee and
Governor to be appointed upon advice of PM. (Quoted)

Impact of 18th Amendment

Removing bar on PM’s two terms

The powers of the Prime Minister have significantly grown under the 18th Amendment. But the
biggest boost was removing the two-time bar to hold the position. This is not the case in the leading
western powers – and for a good reason. The reason, as explained by President Harry S Truman,
proposed to the Hoover Commission was that having Presidents for unlimited terms will create a kind
of monarchy that will be self-defeating after the sacrifices made in the Revolutionary War known
better as the American Revolution.

Pakistan, from having a progressive law of a two-term limit for a Prime Minister, moved to a
retrogressive law of allowing more than two stints at premiership times largely seen as facilitation for
Nawaz Sharif to become Prime Minister a third time. In Pakistan the turn of democratic norms in-
party and nationally to a dynastic springboard allowing appointment of favoured people at crucial
spots to serve vested interests has destroyed institutions at the expense of strengthening individuals.

Abolition of Concurrent List

The reason promoted to abolish the Concurrent List under the 18th Amendment was to promote
provincial autonomy. However, we need to look at this claim a little more closely. Being a Federation,
Pakistan has based its administration on many levels including the Central government or Federal
government and the provinces being units connected to the Centre.

Certain entries stand removed from Federal Legislative List I and have effectively been shifted to
provinces. Others have been shifted to Federal Legislative List II thereby bringing it under joint
supervision of Federation & Provinces. The Concurrent List stood abolished completely. In this
regard, the Dawn Newspaper argues:

“The question that should have been addressed prior to passing of the 18th Amendment is if passing
on responsibilities of the federation to the provinces will actually a) enhance provincial autonomy b)
result in better managing of the responsibilities at the provincial level c) will effectively maintain
consistency of policy on issues requiring a national direction”. (Dawn April 8, 2010)

None of the above three basic criteria were met by the 18th Amendment.

Instead of focusing on making Pakistan into an effective federal state with a balanced approach
towards its provinces, the 18th Amendment worked towards devolution of powers without too much
effort going into analysing the impact the Amendment would have upon the legal structure of the
country. Moreover, there was also a lavk of setting up infrastructures for good governance to trickle
down to grassroots levels and thereby the common man prior to introduction of the law.

Education & 18th Amendment

Education was one subject devolved at the provincial level. This was done without thinking through
that

a) whether the provinces are equipped in terms of teachers, infra structures and educationalists to
develop courses and other related necessary base needed to take advantage & implement this
devolution, and

b) whether ALL provinces equally have the aforementioned basic variables in place failing which this
inclusion would inevitably lead to unequal standard of education in different provinces leading to
disadvantage of those provinces lagging behind in many fields; Civil Services being only one of them.

The Higher Education Commission’s (HEC) existence was also challenged, however, on April 12,
2011, the Supreme Court allowed it to discharge its duties & perform functions under HEC Ordinance
2002.

Moreover, under the Amendment, not only are the provincial governments responsible for paying all
education-related costs including stationery, schoolbags and transport for children aged 5 to 16 age,
they are also obligated to provide education. Moreover, the governments are also responsible for
monitoring private sector education as well. However, there remain complications as well. Dr Syed
Manzar Abbas Zaidi, in his paper for SISA in 2013, argues:

“Another interesting question raises its head. War on terror is being conducted on Pakistan soil. There
has been a lot of talk on media about taking on board and regulating education imparted in
madrassahs seen as breeding ground of religious extremism. Steps taken by the civil government at
different levels support and compliment military actions against extremism. Each madrassah has its
own curriculum, its own method of education and awarding of certificates etc”.

In this regard, not only is there division between Sunni & Shia Madrassahs, there are sects within. The
question that poses itself is; will the provinces monitor, check and oversee what is taught in these
nurseries even if content is determined by the federation? Do they have the apparatus & the ability to
do so?

A lot of foreign funding flows into education in Pakistan. With the 18th Amendment, the funding
institutions logically are talking to the provinces. In this situation, what monitoring rights do the
federation has to ensure that the funds are properly not only channelized but also that the national and
sectarian harmony is not compromised?

Health & 18th Amendment

Another negative resulting from the 18th Amendment was the devolution of health services to
provinces, with no central checking authority. The provinces are/were ill equipped to handle this
critical area of social wellbeing and service to people. In this regard, Ayyaz Kiyyani argues, “While
the idea of moving power bases nearer the people is generally welcomed by most, provincial
governments at the moment are still at an early stage of preparation to assume the new
responsibilities.” (Dawn July 10, 2011). Where the world is moving towards regulation of drugs,
Pakistan has moved towards the deregulation of the same.

Another issue coming out of this has been that of counterfeit drugs. The Pakistan Manual of Drug
Laws, defines a counterfeit drug as “a drug, the label or outer packing of which is an imitation of,
resembles or so resembles as to be calculated to deceive the label or outer packing of a drug
manufacturer”. When teams of Drug Regulatory Authority of Pakistan (DRAP) and Federal
Investigation Agency (FIA) conducted a joint raid at a factory in Kahuta Industrial Area, it was
discovered that counterfeit medicine was being manufactured at the facility.

It was found out in the raid that one of the major drugs being produced at this factory was Sofosbuvir,
which was sold under the brand name Sovaldi. It is worth noting that this drug is used to treat
hepatitis C, which costs a patient Rs55000 for one month of treatment, with treatments lasting up to
six months of treatment. Another drug Everlong, the registration for which was cancelled by the
DRAP, was also being manufactured unlawfully at the factory. There are just a few examples of how
the health sector might have further deteriorated with the devolution of powers to provinces.

The World Health Organisation had also expressed its reservations over the state of Health sector after
the 18th Amendment. In 2011, in a letter to the then PM Gillani, the World Health Organisation
(WHO) expressed concerns over the devolution of the Ministry of Health to the provinces. The
concern of the WHO was that the provinces did not have enough resources, infrastructure and medical
staff and if the provinces were given the responsibility of health sector in such circumstances, it would
wreak havoc”, a source, quoted in the Pakistan Today, said.

Questions raised by the 18th Amendment

The discussion on the 18th Amendment also raises several important questions:

Should the Federation absolve itself of its overall check and balance authority upon the provinces?

Should the federal structure allow a variety of policies on same issue by different provinces?

What if there is conflict between the Provincial and Federal Government in how the approach each
subject?

Does the current arrangement make the Federal structures less effective?

Though supporters of the 18th Amendments say strong provinces ensure strong centre….. has this
happened on ground?

Were and are the provinces strong enough to rise to the challenge and take advantage of this huge
change in shape of 18th Amendment?

These are the questions that need to be answered by the Parliament while deciding on how to govern
the country in the near future.

Conclusion

The 18th Amendment has created a governance gap; where it has removed the Federal umbrella,
funnelling finances to provinces without checks and accountability. The recent revelations in the
“Fake Accounts Case” in Sindh, if proved, will reflect the weakness of the federation, but not
necessarily at the cost of strengthening of the provinces. The 18th Amendment has so far not offered
much to the common man and has neither managed to lead to a smoother interaction between the
federal and provincial levels.

Unfortunately, should PTI wish to put the house in order on this front, it is faced with a strong
opposition, having weak numbers but in the National Assembly and Senate. It is, therefore, all a game
of numbers. Even if a revisit is sought, one doubts much will come out of it. Which pretty much
leaves us with a constitution based on the Act of India 1935, the Articles included and changed by
Gen Zia and the 18th Amendment all joining together to create a recipe for disastrous governance.

18th Amendment: Rhetoric versus Reality

Introduction
Presentation on “18th Amendment: Rhetoric versus Reality” by Ms. Asiya Mahar, Assistant Research
Officer was organized by Islamabad Policy Research Institute, Islamabad on March 12, 2015 at IPRI
Conference Hall.

Salient Points:

Key points of presentation are mentioned below:

• 18th amendment became an act of parliament on April 19, 2010. It includes 102 amendments to
various sections of the Constitution including the deletion of the Concurrent Legislative List and the
addition of subjects to Part II of the Federal Legislative List.
• The government constituted an 18th Amendment Implementation Commission on May 4, 2010 to
work on its implementation. During 2010-11, the Commission finalized a detailed roadmap for
devolution of 34 federal ministries and divisions.
• The devolution was done in three phases, and 17 Ministries were devolved.
• According to reports by the government, provincial governments have made satisfactory progress,
and all relevant ministries have been devolved from the federal level. To a large extent, the
relocation of human resource has been completed and the provinces have received ownership of
majority of federally run development projects.

The challenges that surfaced during post-devolution period are:

• The levels of provincial readiness needed to cope with changes were unevenly spread and the
reallocation of human resources also presented challenge.
• The future of 61,231 federal government employees who have been moved from the federal to
provincial domain on deputation basis remains uncertain.
• Implementation commission identified a total of 232 projects under the ministries that were to be
devolved. Of these, only 166 have been devolved to the provinces and decisions on others are
pending.
• Article 164 demands that the Council of Common Interest meets once every 90 days and the
National Economic Council twice a year; the meetings are needed to be convened as per schedule.
• Mechanism for the collection of resources by provincial governments is yet to be introduced.
Although 18th Constitutional Amendment envisaged a formula for distribution of financial resources
through 7th National Finance Commission Award however the allocations are being made under
Non-Developmental Expenditure.
• As per the 18th Amendment, some key ministries are still to be devolved to the provinces.

Post 18th amendment changes in the HEC status were discussed, which are:
• 18th amendment added ‘standards in institutions for higher education and research, scientific and
technical institutions’ to the Federal Legislative List II. The amendment did not, however, touch two
items on Federal Legislative List Part I – ‘Federal agencies and institutes created for the purpose of
doing research, for professional or technical training, or for the promotion of special studies,’ and
‘Education with respect to Pakistani students in foreign countries and foreign students in Pakistan.’
• The functions of the HEC were not completely devolved to the provinces since some of its
functions were handed over to five different ministries at the federal level with only few subjects left
to be handled by HEC.
• The federal government placed the HEC under the Ministry of Professional and Technical Training.
Prior to the 18 Amendment, HEC worked directly under the Prime Minister, and HEC chairman was
equivalent to a federal minister in status.

To effectively implement 18th amendment, following recommendations are

suggested as a way forward:

• Capacity constraints within provincial governments should be addressed.

• Implementation phase should be completed including participatory and open decision making
process; seeking of technical advice, and careful planning.
• Anomalies Cell established to deal with problems related to execution of 18th Amendment should
be institutionalized.
• Appropriate institutional arrangements at federal level should be created. Two kinds of
institutional entities are desirable; one which is representative of the federation and second that
carries out effective inter-provincial linkages and coordination.
• The success of reforms hinges on appropriate domestic technical capabilities. Therefore, the
provinces should strengthen existing policy units.
• Addressing core constraints facing the state is the key. Without paying attention to resolving core
issues such as accountability, patronage, merit, arbitrariness in decision making and policy
vacillation; devolution cannot come to fruition.
• 18th amendment will not bring any tangible change in the power structure of governance of the
country until bureaucratic reforms are introduced.
• Amendment demands capacity building of all the provincial institutions and it would not be
possible without carrying out due reforms in the structure of civil services.
• There should be national regulatory authorities to monitor provincial compliance with national
minimum standards.

ARTICLES

Post-18th Amendment fiscal challenges

The fiscal management in the wake of 18th Constitutional Amendment [the "18th Amendment"] has
been posing serious challenges for all. The problems diagnosed by experts are ambiguity over taxation
rights between federation and its units, weak administrative structures, lack of political will and
apparatuses to enforce devolved subjects/laws, issues of capacity, efficiency, rent-seeking and
competitiveness, violation of the rule of law, non-acceptance of the norms of fair play in economic
matters coupled with 'reckless' borrowing and 'ruthless' spending amidst dismal tax-to-GDP ratio.

Structural reforms and concrete actions are needed for tapping the real tax potential of the country,
which is not less than Rs. 12 trillion at national and provincial levels ['Towards Flat, Low-rate, Broad
and Predictable Taxes', PRIME, 2016]. Unfortunately, the present tax collection by federal and
provincial governments is highly unsatisfactory. The real potential at federal level is not less than Rs.
8 trillion, whereas Federal Board of Revenue (FBR) is not collecting even half of it. The same is the
position of provincial tax authorities that have failed to realise the tax potential of Rs. 4 trillion. At
present, all broad-based and buoyant sources of revenue are with the federal government while
contribution of provinces in total tax revenues is only seven percent-in overall national revenue base
(tax and non-tax revenue) it is around eight percent. This has made them totally dependent on the
federal government for transfers from divisible pool and/or direct grants.

Pakistan, as mentioned in 'PTI and tax reforms', Business Recorder, August 17, 2018, needs to
increase collection at all levels of governments to bridge monstrous fiscal deficit that reached the level
of 6.2% of GDP (Rs. 2.3 trillion) for the fiscal year 2017-18. It was stressed in 'Overcoming
fragmented tax system', Business Recorder, October 19, 2018 that all the tax collection agencies in
Pakistan should be dismantled and merged into single National Tax Authority (NTA), which should
effectively enforce tax laws at federal, provincial and local levels, besides providing single window
facility to taxpayers. Before establishing NTA, all the four provinces should be consulted and
consensus must be reached for establishing an All Pakistan Unified Tax Service (APUTS) as
suggested and elaborated in 'Case for All-Pakistan Unified Tax Service: PTI & innovative tax
reforms', Business Recorder, August 31, 2018, and 'Doing business under scattered taxation', Business
Recorder, September 7, 2018.

One major hindrance towards optimizing revenue collection is the scattered and haphazard tax
collection through multiple authorities at the federal and provincial levels. The trend was further
strengthened consequent to the 18th Amendment after which the provinces established their own tax
collection agencies at the provincial level. However, these provincial tax authorities still lack skilled
manpower, tax collection expertise and other necessary human capital and paraphernalia to collect
taxes. To meet these objectives, the services of FBR officers were requisitioned by the provincial
authorities for their posting at provincial tax collection agencies on deputation basis. Resultantly,
many of the FBR officers were sent to provincial tax agencies such as Sindh Revenue Board (SRB)
and Punjab Revenue Authority (PRA).

Although the 18th Amendment was widely appreciated by the provinces, it created fissures in the
revenue collection authority of FBR resulting in further decline in tax collection because tax on
services fell in the provincial domains. On one side, the move was hailed by the provinces but, on the
other, the taxpayers immediately started raising their eyebrows because they had to now face both
federal and provincial tax authorities. All major Chambers of Commerce expressed their concerns and
showed reservations on the scattered tax collection in the aftermath of the 18th Amendment. It is
important to mention that Excise and Taxation (E&T) departments are already working as a separate
entity under the provincial governments. The E&T departments have no formal administration
connection with SRB, PRA and other provincial tax collection agencies. Unless, all federal and
provincial tax agencies are unified and harmonized, the dream of optimum tax collection cannot be
materialized. Through consensus and democratic process, all the parliaments can enact laws for
establishing an autonomous National Tax Agency that can facilitate people to deal with a single
Revenue Authority rather than multiple agencies at national, provincial and local levels. The mode
and working of NTA can be discussed and finalised under Council of Common Interest [Article 153]
and its control can be placed under National Economic Council [Article 156].
It is strange that with the devolution of a large number of subjects to the provinces since the
Eighteenth Constitutional Amendment in 2010, Planning Commission is still working as arm of
Federal Government without taking into account the command of Article 156(2) of the Constitution
which says:

"The National Economic Council shall review the overall economic condition of the country and
shall, for advising the Federal Government and the Provincial Governments, formulate plans in
respect of financial, commercial, social and economic policies; and in formulating such plans, it shall,
amongst other factors, ensure balanced development and regional equity and shall also be guided by
the Principles of Policy set-out in Chapter 2 of Part II".

The deletion of the subject of national planning from the exclusive domain of the Federal
Government, and the placing of the National Economic Council (NEC) in the list of subjects
mandated to be the joint responsibility of the Federal Government and the Provincial Governments
remains unnoticed by our parliamentarians and independent experts. Strangely, the provinces have not
raised this issue till today.

Centralised planning was an important factor in the dismemberment of the country in 1971. The
planning, in the post-Eighteenth Amendment period should have to be federalised rather than
centralised. But nobody has raised this issue. The Eighteenth Constitutional Amendment has
redefined NEC on the pattern of Council of Economic Interests (CCI). The NEC forms part of the
Chapter 3 of the Constitution entitled 'Special Provisions'. Before the Eighteenth Amendment, Article
156 related to the NEC had two clauses. Clause (1) described the composition and clause (2) its
functions. These clauses have undergone important changes after the Eighteenth Amendment. The
pre-amendment clause (1) read as follows:

"The President shall constitute a National Economic Council consisting of the Prime Minister, who
shall be its Chairman, and such other members as the President may determine:

Provided that the President shall nominate one member from each Province on the recommendation of
the Government of that Province." While the apex planning body, the NEC, has been federalised,
Planning Commission continues to be centralised. The spirit of the Constitution can be satisfied by (1)
making Planning Commission, in place of the Cabinet Division, the Secretariat of the NEC and (2) by
reducing the number of its members to five, one each from the Provinces and the Federal
Government. Prime Minister chairs the NEC and there is no need for him to Chair the Planning
Commission. The Chairman should be appointed by the CCI to represent the Federation.

There is an urgent need for restructuring the planning mechanisms in the provinces. At present, the
provincial planning and development boards/departments are not working in harmony with NEC. An
important reason why the centralised role of planning and the Planning Commission continues is the
weak capacity of the provincial planning mechanisms. After the Eighteenth Amendment, the Planning
Commission could no more be a centralised body. Federal Legislative List, Part I, contains subjects
which lie in the exclusive jurisdiction of the Federal Government. Before the Eighteenth Amendment,
its item 32 related to planning-"National planning and national economic coordination including
planning and coordination of scientific and technological research." After the Amendment, the subject
was included in the Federal Legislative List, Part II. The last-mentioned list of subjects is neither
exclusively federal nor provincial; it is an area of joint responsibility. In the Constitution, a special
institution, the Council of Common Interests (CCI), has been created to supervise the affairs of the
Federation listed in Part II of the Federal Legislative List.

The taxation rights under the prevalent constitutional scheme needs reconsideration allowing
provinces to raise adequate resources that will also help in overcoming overall fiscal deficit faced by
the Centre. For example, Balochistan should get "net proceeds" on natural gas and Khyber
Pakhtunkhwa on electricity, as envisaged in Article 161(1)(a) & (b) of the Constitution. Their present
share in sales tax from divisible pool is as low as 9% and 14% respectively. They have rich natural
resources and wealth of oil, gas and electricity but due to low population get a small share for goods
they produce. The same is the case for Sindh. Punjab is the only beneficiary of the existing
distribution of taxes under Article 160-it gets a lion's share of 53% (for 2017-18 it was Rs 1.2 trillion).

It is imperative that right to levy tax on income, including agricultural income, should be given to the
Centre. In return, the Centre should hand over sales tax on goods to the provinces. This will help FBR
collect income tax as per actual potential and the provinces by levying sales tax on goods in addition
to services will generate sufficient funds for their needs. It will also reduce fiscal deficit of the Centre.
This is the only way to achieve fiscal stabilisation in Pakistan without disturbing the 18th
Amendment.

(The writers, tax lawyers and partners in Huzaima, Ikram & Ijaz, are Adjunct Faculty at Lahore
University of Management Sciences)

In defence of the 18th Amendment

By Hassan Niazi

Published: November 6, 201

As Pakistan reels from the inevitable gloom and doom that comes in the aftermath of yet
another capitulation before extremist groups, the spectre of another threat to democracy
lurks in the background. Rumours abound, not without credence, of a move to repeal — or
at least — water down the 18th Amendment to the constitution. An Amendment, that some
quarters have called a catalyst for turning Pakistan into a confederation. Such claims fail to
understand both the importance of the amendment and its true impact. A move to repeal
the 18th Amendment, if it were to happen, would be disastrous for Pakistan’s fragile
democracy.

Before the 18th Amendment, the Constitution’s claim that Pakistan was a federation was
nothing more than a hyperbolic statement on a piece of paper. The 18th Amendment paved
the way for Pakistan to become a proper federation, rather than the centralised unitary
system it had been for so long. It was the 18 th Amendment that realised what federal
republics all over the world have known for centuries: that federalism is far better than a
unitary system because it prevents the tyranny that comes so easily when power is
concentrated in one place. The mitigation of the circumstances that give rise to tyranny is
necessary in a country that has for so long battled with strongman rulers dictating policy
from the center. When convincing the American people that a federal system would be to
their benefit, Alexander Hamilton would make this same point in the Federalist 28: ‘Power
being almost always the rival of power, the general government will at all times stand ready
to check the usurpations of the state governments, and these will have the same
dispositions towards the general government.’

While correlation does not imply causation, we can at least give some credit to the
18th Amendment for allowing two peaceful democratic transitions of power in its wake.
This by itself should be argument enough for all political parties to be united to make sure
that the repeal of the 18 th Amendment never happens. However, to put the rumblings of
repeal to rest, let me point out some other distinct advantages of provincial autonomy that
might sway those who still believe that federalism is a bad idea to see the light.

The most obvious advantage of federalism is the promotion of efficiency through the
division of labour. The provinces are closer and more in touch with local issues, therefore,
it makes sense to allocate responsibility for their particular issues into their hands. The
Federal Government can then concentrate on larger national issues, such as national
security, transportation and our ballooning national debt. Another, lesser known, benefit
of federalism is the promotion of experimentation within the provinces that can lead to
innovative policies and legislation that can serve as models for the rest of the country. This
is why Justice Brandeis of the Supreme Court of the United States said of federalism that:
‘a single courageous state may, if its citizens choose, serve as a laboratory; and try novel
social and economic experiments without risk to the entire country.’ The state of
Massachusetts would try such a novel experiment by creating a universal healthcare
system. A system that would prove so successful, it would galvanise the Democratic Party
to replicate it for the entire nation.

It should not be a surprise that voter participation increased in Pakistan’s elections at both
the provincial and federal levels after the 18 th amendment, since this is another clear
advantage of creating a system of provincial autonomy. Federalism fosters greater citizen
participation in government. To the people living in each respective province, local
governments and provincial legislatures are far more approachable and far less enervated
than the Federal Government — which may never be able to understand their specific
geographic and cultural issues. They will realise that their localised issues are far more
likely to be addressed by the provinces than the Federal Government, because it is easier
for the provinces to react to these issues.

Of course, none of the benefits I have described would amount for anything if the
18th Amendment hadn’t given the provinces autonomy and ownership over their own
resources. The greatest legacy of the 18 thAmendment was with regards to its restructuring
of the National Finance Commission (NFC) award. The insertion of Article 160 (3A) meant
that the share of the provinces in each NFC award could not be less than the share given in
the previous award. Nor could the Federal Government encroach upon the 57% share of
fiscal resources given to the provinces. This was by far the most powerful measure to
ensure provincial autonomy that the 18 th Amendment brought about. Exploitation by the
center of a province’s resources can lead to friction of catastrophic proportions. Think
about a one such incident in our country’s history that happened in 1971 and you will
realise what I mean. Even if the rest of the 18 th Amendment stands, if the NFC and share of
fiscal resources given to the provinces is tampered with, the 18 thAmendment will have lost
its soul.

Critics of the 18th Amendment believe that by restraining the federal government from
limiting the resources allocated to the provinces, the 18 th Amendment has limited
expenditure for the single biggest priority for Pakistan: national security. We don’t need to
get into a debate about whether this should be Pakistan’s number one priority, if we can
show that this claim is just untrue. Dr Hafeez Pasha debunks this myth and writes that in
2016-2017 the net revenue receipts of the Federal Government were Rs2583 billion, while
the expenditure needed for debt servicing and defense was Rs2237 billion. This left a
surplus of Rs347 billion for the federal government to meet other expenses. What this
shows is that Pakistan’s favourite monetary splurge project: defence spending, won’t be
facing any financial crisis because of the 18 thAmendment.

The distinct advantages of federalism: its prevention of tyranny, fostering of innovation,

promotion of efficiency, and increased citizen participation should make all political
parties resolute in resisting any move to repeal the 18 th Amendment. A country that has
repeatedly tried and failed to extract beneficial results from the ‘strong center’ model of
government should be prevented from a relapse that may be nigh impossible to rehabilitate
again.

Published in The Express Tribune, November 6th, 2018.