Raashid Wali Janjua
EIGHTEENTH Amendment in 1973’s Constitution has resulted in certain problems for the Federal Government that have highlighted the old schism between the unitary and federal nature of the Constitution. After 18th Amendment certain powers have been ceded to the provinces that whittle down the fiscal space for the Centre to meet its financial obligations in crucial areas like debt servicing and defence. The one unit in 1955 had converted West Pakistan into a single administrative unit along with another administrative unit of the Federation ie East Pakistan. After abrogation of the one unit in 1970 by Yahya Khan the administrative autonomy was devolved to the provinces but the fiscal autonomy remained with the Centre. So administratively a Federation and fiscally a unitary state Pakistan suffered this dichotomy till introduction of 18th Amendment.
Pakistan’s administrative and political structure had a strong colonial imprint in the form of 1935 Act which was the de facto constitution of the country on the eve of independence. The whole administrative structure of the country was based on that Act including the provincial boundaries based on the principles of divide and rule and not classical administrative efficiency. The British carved out the provincial boundaries based on their political and extractive policies wherein they wanted to divide people on the basis of religion and ethnicities in order to extract maximum revenue free of conflict and resistance. Our constitution making exercise also retained the British flavour by amending the Government of India Act in the form of 1956,1962 and then 1973’s constitution. The colonial state’s over developed bureaucratic structure thus dominated the political structure represented by feudal-dominated weak political structure and traditions. 18th Amendment was the first attempt to convert the country into a true Federation but while doing so the original structure based upon colonial considerations was retained instead of carving out new administrative units based upon administrative efficacy. The exercise of deliberations upon 18th Amendment should only have commenced after the restructuring of the country’s colonial administrative structure as per requirements of good governance and administrative efficiency. Instead a PPP Government that was confronted with a serious insurgency in Balochistan along with a governance crisis hastily introduced the 18th Amendment knowing fully well that it shall not win next elections. The proclivity to amass maximum administrative powers to enjoy strong provincial governments in future was a protective manoeuvre by PPP to retain political clout at least in one province. 18th Amendment was debated for 10 months in a Committee but very less time was given for a debate after it was tabled. While the 1973 Constitution was debated for 67 days the 2nd and 3rd amendments also took 97 and 41 days of debates respectively. 18th Amendment was not given adequate time for open debate in the National Assembly.
After problems like debt servicing and defence expenditure surfaced and the capacity issues of the provinces in subjects like health and education came to the fore the hasty passage of the amendment came in for criticism. The provinces though happy in their new found powers failed to devolve the powers at local government level killing thereby the true spirit of democratic governance besides hamstringing their ability to provide services to people based on their needs. One of the serious problems with the amendment is the non-binding nature of direction for Local Government’s establishment. This indeed is the heart of the problems afflicting 18th Amendment. As per Article 140A the local government’s establishment has been dealt with as a “Principals of Policy” issue instead of a binding directive. Contrarily in Indian Constitution the 73rd and 74th Amendments categorically direct the states to establish a strong framework of local government.
Another issue with the amendment is the Article 160(3A) which locks the share of the provinces in the divisible pool of the National Finance Commission which can be increased but not decreased. The current controversy over the Federal Government’s attempts to get out of that bind in the shape of new terms of reference for the 10th NFC Award is an indication of the conflict between the centre and the provinces. In addition to above is the capacity issue of the provinces wherein the Provincial Assemblies are reluctant to deal with their legislative challenges effectively. Without solid intellectual work the legislative ability of the provincial assemblies is seriously constrained. When the provinces do not develop the local structures of governance the Federation would start encroaching on their domains. For instance after 18th Amendment there is no justification of organizations like “Real Estate Reorganization Agency” or any new authorities at federal level.
A review of 18th Amendment in fact requires a review of the whole system of governance and polity. The past NFCs passed hastily have now come to haunt the Federation. The NFC Award that should be reviewed every 5 years requires an intellectual planning base without which mistakes could be made costing the Federation dearly. Despite 18th amendment the federal government continues to cling to its symbols of control like federal ministries which have actually been devolved to the provinces. The Ministry of Health is one such example where federal and provincial governments are duplicating the effort resulting in increase in government’s expenditure. 18th amendment has also not touched aspects like terms of office of a Prime Minister which should have been specified to make our democracy truly inclusive. The issues of provinces’ capacity to govern themselves are also linked to their financial resources. The 18th Amendment is also silent on issues of tax collection eg GST and VAT that should be allowed to the provinces.
There are issues like educational curriculum and labour welfare that need to be sorted out between the provinces and the Centre. The single national curriculum and its enforcement is a subject that needs clear delineation of federal and provincial governments. The Workers Welfare Fund and EOBI that are principally provincial subjects but would hurt smaller provinces if implemented also need to be sorted out. The Council of Common Interests (CCI) is another forum that is a consequence of 18th Amendment. As per Constitution it is supposed to meet every 90 days but it has only met thrice during the current government’s tenure. The CCI has in fact become a super cabinet adding another layer to national decision making. An apt example of delay in decision making is the census which always gets delayed due to lack of consensus in CCI. Despite above problems the solution does not lie in repeal of the Amendment but building up consensus to address its shortcomings. An alternative to political approach is the use of judicial route but resolution of a political problem through judiciary would result in further problems. Patience, perseverance and consensus building along with regular meetings of NFC and CCI are de rigueur to resolve problems of 18th Amendment rather than a forced solution sans democratic norms.
— The writer, a Retired Brig, is a PhD scholar at NUST, Islamabad.
