Questions about 18th amendment

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Situationer

M. Ziauddin

It has been almost seven years since the historic 18th Constitutional amendment was passed by Parliament. But one latest measure of the quantum of autonomy the four provinces have succeeded in achieving since shows that it is no more than an abysmal five percent of what the amendment guaranteed. The provinces still seem trapped in the colonial clutches of Islamabad. The biggest hurdle in the way seems to be the federal civil bureaucracy, which appears to have not yet reconciled to the idea of losing its colonial powers over the provinces.
Also, some influential elements in the political parties represented in parliament perhaps under the influence of the interested lobbies still seem apprehensive of ‘bestowing’ autonomy on the people who they believe are not yet capable of shouldering increased responsibilities. Even some of those who countersigned the amendment seem to sincerely believe that ‘granting’ full autonomy to the provinces would lead to disintegration of the country. These elements perhaps fear that the smaller provinces would use the Eighteenth Amendment to drift away from the federation, not realizing that it was because they were being ruled all these years as colonies from Islamabad, negating the spirit of federalism that the three smaller provinces today seem to be suffering from a massive dose of disillusionment with the federation itself. And that is also why East Pakistan is Bangladesh today.
The reluctance of the civil bureaucracy and the apprehensions of influential political elements have made it almost impossible to draft and pass in time, relevant subordinate legislations both in parliament and the respective provincial assemblies which is making it almost impossible to move ahead on the game-changing constitutional reform.
The other day at a national conference on “Implementation of the 18th Constitutional Amendment” organized by Pakistan Institute of Parliamentary Service in collaboration with Pakistan Institute of Development Economics and the Friedrich-Ebert-Stiftung(FES) and presided over by Mir Kabeer Ahmed Muhammad Shahi, Chairman, Senate Functional Committee on Devolution Process, the main speakers sounded greatly disappointed with the progress of implementation of the amendment largely because the Council of Common Interests (CCI), in their opinion, has been consigned to the limbo.
Indeed, the PML-N seems too centrist to appreciate the problem, the PTI too ignorant of the demands of federalism and the PPP too lethargic to make the right moves at the right time. And a federal bureaucracy that does not know that it does not know has continued to remain the main obstacle in the way of the CCI coming into its Constitutional being. The federal bureaucracy has rendered the CCI into a spineless entity not able to regulate, supervise and control vital functions accorded by the Constitution. This has jeopardized the basic concept and essence of Eighteenth Amendment that aimed at striking a balance of power between centre and the federating units.
The Article 154 of the Constitution is unambiguous: “The Council shall formulate and regulate policies in relation to matters in part II of the Federal Legislative List and shall exercise supervision and control over related institutions.” The subjects in question include water and power, petroleum and natural resources, railways, ports, industries and production and inter-provincial coordination.
Another big hurdle in the way is the extension given to Article 143, which empowers the federal legislature to overturn with a simple majority any law passed by any provincial assembly.
The Eighteenth Amendment renders redundant a number of federal ministries while increasing the administrative responsibilities of the provinces in equal measure. But the federal government is yet to abolish the redundant ministries and the provinces are yet to receive the powers that the amendment has mandated.
In fact, instead of abolishing the redundant federal ministries, the government has created a dozen new federal portfolios without the approval of the CCI. These include ministries and departments of information, housing, textile, privatization, narcotics control, national food security, the Alternative Energy Board, the Evacuee Property Trust Board, the Benazir Income Support Programme, the National Youth Loan Scheme and the Employees Old-Age Benefits Institution.
On the other hand, while the next National Finance Commission Award is due in July this year, regrettably no discussion has been initiated either by the centre or the provinces so far on the subject. To be sure, the increase in the responsibilities of the provinces, especially their responsibilities concerning social and physical infrastructure — education, health, housing, family welfare, potable water, roads, bridges, irrigation water, etc. (and considering their massive backlogs) — demand enormous amounts of resources to meet the huge bill adequately. And unless the provinces tap the real potential of the agricultural income tax and the urban immoveable property tax, it would be well-nigh impossible for them to deliver on this front with any degree of success.
Mr Zafarullah Khan, Executive Director, Pakistan Institute of Parliamentary Service in his research paper (The Council of Common Interest(CCI): Understanding and Strengthening the Institutional Aspects) that he presented at the conference has made five very cerebral recommendations:
The provinces must make the best use of CCI to resolve lingering federal questions that fall in its jurisdiction. Creative interpretation of “Inter-Provincial Matters and Coordination” can help evolve federal culture of voluntary cooperation. Presently because of the hassle of visiting Islamabad every time a province needs to approach the CCI the number of issues brought to the CCI by the provinces have remained quite few. We have provincial residencies in Islamabad which the provinces could consider converting into their advocacy secretariats for negotiating with the federal government on regular basis.
There is no representation of the Federal Capital Territory (Islamabad), Federally Administered Tribal Areas (FATA) and Gilgit-Baltistan (GB) in the Council. The people of these regions also deserve to be represented at the CCI.
The Civil Service Academy and other professional training institutes of bureaucracy also need to include courses that enhance the understanding of the bureaucracy about the mechanisms of the CCI. This would enable the bureaucracy to complement the work of elected executive of the federation and the provinces.
The legislators must discuss and debate the Council’s reports in their respective houses to ensure meaningful accountability and transparency.
Finally, the media should play its role in highlighting the progress of Pakistani federalism in its news as well as views programs.
Dr. M. Idrees Khawaja of PIDE presented two papers on the occasion. In the first (Provincialization of Civil Service in Pakistan) he argued that the posting of senior federal civil servants in provinces is against the fundamental principles of management that the person/authority be held accountable for the discharge of certain functions should enjoy complete freedom to choose the team for carrying out these functions.
Therefore, he further argued that a mechanism needs to be developed to allow the provinces to hire all the civil servants that it needs. In his opinion, however, the performance of the bureaucracy would not improve merely by allowing the provinces to recruit all the civil servants it needs. Certain key changes in overall structure of public service as well as civil service are needed, in his opinion (for example recruitment of specialists rather than generalists—the right man for the right job) are needed to improve performance of the bureaucracy.
In his second paper (Oil and Gas Resources: Joint ownership of Federal and Provincial Governments—Implementation of Article -172(3) of the Constitution of Pakistan) Mr. Khawaja has dealt in detail the wide gap that exists between the federation and the provinces in the interpretation of the relevant Article. The federal government seems to be of the view that by equally sharing the revenues from oil and gas reserves located in the provinces, with the province concerned it is already fully implementing the Article-172(3) of the constitution. The provinces on the other hand hold the view that besides an equal share in revenues the Article in question requires the provinces and federal government should have an equal say in all decision; including award of exploration contracts with respect to oil and gas reserves in their respective jurisdictions.
Mr. Khawaja’s answer: The challenge then is; one, minimize the would -be losers or their losses and two, overcome the dejure and defacto power of would be losers by using constitutional and political means.
In his opinion while success of constitutional means is difficult to predict the use of political means depend upon whether the devolution envisioned under the 18th amendment was being willingly undertaken by all stakeholders to respect the will of the people at large or that they accepted the devolution in return for some other provisions of their interests included in the amendment. The gains, other than the devolution, that they expected from the 18th amendment, having already accrued, the motivation to implement the devolution part might have subsided.
Terming the Conference timely, Senator Shahi who delivered the keynote address hoped that the recommendations put forth by the research papers presented on occasion on selected subjects like the Council of Common Interest, education, civil service and natural resources of oil and gas will be able to open a new arena of discussions regarding the post -18th amendment issues.