18th Amendment: Much Ado About

Nothing
By Syed Akhtar Ali Shah
Published: May 6, 2020

The announcement of the federal government to revisit the 18 th Amendment and

fill the gaps therein in the backdrop of the coronavirus pandemic has not only
ignited a new debate but has also caused a furor amongst the amendment’s
supporters who have vowed to resist it at all costs. The Pakistan Peoples Party
(PPP), the Awami National Party (ANP) and the Qaumi Watan Party (QWP)
have, in a chorus, declared that the 18 th Amendment is a sacred part of the
Constitution that acts as a guarantor of an amicable relationship between the
federation and its federating units. The repeated outburst against the
18th Amendment requires a dispassionate analysis as it is a logical conclusion of
a historical process dating back to the British colonial era.

Self-rule had been the most cherished demand of the people living under the
colonial rulers in the previous century. In the context of Indo-Pak Subcontinent,
federalism akin to confederation had been on the high agenda of the All India
Muslim League (AIML). Even after independence, federalism remained one of
the thorniest issues in the history of Pakistan. Denial of participation and
ignoring cultural identities caused a sense of alienation among the smaller
provinces and consequently gave rise to separatist tendencies which resulted in
the separation of East Pakistan. The 1973 Constitution, based upon the
consensus of all stakeholders, tried to resolve the thorny issue of distributing
legislative powers between the Centre and provinces with the help of Federal,
Concurrent and Residual Lists. While framing the Constitution, the then prime
minister of Pakistan had given an assurance that with the passage of time the
concurrent list would be abolished. However, with successive military takeovers
the original constitution was defaced, and it was in this background that the
18th Amendment was passed.
It is important to dispel the misunderstanding that the 18 th Amendment only
granted fiscal and legislative powers to the provinces or regulated the
distribution of revenues. As a matter of fact, these powers already formed part
of the Constitution prior to the 18 th Amendment. For instance, Article 153
provided for the Council of Common Interest (CCI). Article 156 existed for
National Economic Council (NEC). Articles 158-161 not only provide for
provinces’ rights over natural gas hydroelectric or thermal power installation
and power lines but also a National Finance Commission (NFC) to regulate
provinces’ share in national revenue. The amendment to Article 172(3) has now
provided for the joint ownership of oil, mineral and natural gas within the
provinces, but already existed.

We must also be mindful of the fact that the seventh NFC Award was announced
in December 2009 before the commencement of the 18 th Amendment in 2010.
The 18th Amendment only provided constitutional protection to the NFC Award
and is hailed as a landmark achievement towards the goal of fiscal federalism as
it accepted the principle that the distribution of resources between the federal
government and the provinces would not merely be based upon population but
poverty, revenue generation and inverse population density would also be
factored in.

The 18th Amendment not only operationalised fiscal federalism but also

reestablished the writ of democracy in the country. It amended Articles 6 and
270 of the Constitution to block the way to military adventurism to topple an
elected government or abrogate, suspend or subvert the Constitution. Similarly,
the judicial validation of unconstitutional military interventions was also
prohibited. Moreover, the abolition of the concurrent list of legislative subjects
is another fundamental change. With the striking out of the list, provinces now
have the exclusive domain to legislate on important matters such as criminal
law, contracts, transfer of property, labour welfare, marriage and divorce.
Further striking features include the repealing of Article 58(2)(B) by curtailing
the executive powers of the president, forming the CCI into a more substantive
body, rationalising the size of the cabinet, re-naming NWFP as Khyber
Pakhtunkhwa (K-P), increasing the representation of provinces on the NEC, and
empowering the provinces to raise domestic or foreign loans with the consent of
the federal government.

The AGN Qazi methodology, based on the constitutional provisions for working
out net hydel profit figures, was given in 1991 almost two decades before the
18th Amendment. It was developed through consensus of all stakeholders,
including the Centre, now K-P, the NFC, federal cabinet and CCI, and received
the final seal of the Supreme Court in 1997. While the hullaballoo about
18th Amendment is being made, interestingly in 2016 the Pakistan Tehreek-e-
Insaf (PTI) government of K-P presented a list of 24 demands before the
federation wherein the then chief minister of the province pleaded for getting
the constitutional rights of the province within the ambit of the Constitution.
Having the support of the party’s central chief, implementation of the AGN Qazi
methodology was one of their main demands.

Even if we take into account the subjects on the concurrent list before the
passage of the 18th Amendment, the record shows that the provinces had
established and managed almost all of the elementary schools, colleges,
institutes, universities, hospitals, developed industries, agriculture, local
government systems, road networks, dams, irrigation systems, sports,
maintained public order and other areas of governance.

The true understanding of the distribution of legislative, administrative and

financial powers between the federation and provinces can be done not by
reading one provision of the Constitution but by reading the whole in
juxtaposition with elaboration of powers related to various schedules of the
Constitution. Since everything is clearly written in the Constitution, why is there
a need to spread confusion and create upheaval? It is just a case of “much ado
about nothing”. It is better to focus on governance by fuller implementation of
the Constitution, laws, better tax collection and improved international trade
particularly in the region.