18th Amendment needs to be revisited


Col Muhammad Hanif (Retd)

AFTER assuming power as a result of winning the 2008 general election, the Pakistan Peoples Party (PPP) constituted a 23-member Constitutional Amendment Committee in 2009, comprising members from all major political parties to recommend a package of amendments to the Constitution of Pakistan, to restore its original position of 1973. After passage of the draft 18th amendment by Parliament, the amendment became a law on 19 April 2010 when the President Asif Ali Zardari affixed his signatures to it. The 18th amendment enacts more than 100 changes, both large and small to Pakistan’s Constitution. The amendment turns the President into a ceremonial head of state and transfers power to the Prime Minister and removes the limit on a Prime Minister serving for two terms only.
The Council of Common Interests, (CCI and the National Economic Council (NEC) were re-addressed. The High treason under Article-6 was redefined, and fundamental rights were enhanced. Parliament has been strengthened. The Election Commission has also been strengthened by increasing the term of office of the CEC from 3 to 5 years and he/she would be appointed by the PM and opposition leader by consensus. Local bodies’ elections would now be held by the Election Commission. The judiciary has been made independent as a Judicial Commission will appoint the judges.
The amendment also enhances provincial autonomy. The President will no longer be able to declare emergency rule in any province unilaterally. Under the 18th amendment the concurrent list of 47 subjects, on which both the federal and provincial governments were previously legislating, and in case of clash federal law was prevailing, has been abolished and almost 40 out of 47 subjects have been devolved to the provinces. In this regard, the charge of an estimated 20 ministries and divisions and 100 autonomous bodies and institutions have been transferred to the provinces. The 18th amendment has also given more financial autonomy to the provinces. The national resources, including the mineral resources, and oil and gas will be distributed jointly and equally between the federal government and the provinces from which extraction was taking place. Also, now provinces have more tax powers of their own. The provinces are also given the powers to raise domestic and foreign borrowing with the permission of the NEC. The development planning and economic policy making are now shared responsibility of federation and provinces.
The divisible pool of taxes, customs and excise duty and export duties collected each year by the federal government will be distributed as follows: 56% shall be assigned to provinces during the financial year 2010-11 and 57.5% from the financial year 2011-12 onwards. The share of the federal government in the net proceeds of the divisible pool shall be 44% during the financial year 2010-11 and 42.5% starting from the financial 2011-12 onwards. Although the 18th amendment has given more autonomy to the provinces, it has its shortcomings as well, which are being highlighted by various stakeholders and commentators. Some major weaknesses are discussed. Lifting of the restriction to become the Prime Minister and Chief Minister only twice is likely to perpetuate the dynastic rule and negate democracy within the political parties.
Ahmed Bilal Mehboob from PILDAT said that the abolishment of the Concurrent List has posed serious challenges to national identity and it needs to be restored. SM Zaffar stated that by abolishing the concurrent list, it is tantamount to weakening the federation. He further 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. Former Chairman Senate, Wasim Sajjad, commented, “Provincial autonomy is all about control over resources and more finances and revenues for the provinces, and the cancellation of the concurrent list has little to do with any of that.” Some analysts are of the view that the abolition of the Concurrent List is tantamount to transforming Pakistan from a federation into a confederation or “loose federation”, which is likely to harm the national cohesion in the long run.
Due to the 18th amendment, as the Federation has very little say in development of provinces and the provinces have no capacity to deal with the major economic development issues, the overall economic development of the country is suffering. Also, different policies and rules/regulations of the provinces are hindering the development of major national projects, like hydro-power projects, the CPEC, motorways, highways and industrial zones etc which is negatively impacting the overall economic growth and development. On the other hand, due to lack of capacity to handle many subjects and rampant corruption in the provinces, the mafias are taking undue advantage of this situation and are more centric towards bankrupting Pakistan, thus defeating the objective of making Pakistan an economic power, a true welfare state and a strong conventional military power to face the obvious threat to its national interests and security from a overbearing neighbouring Hindu state.
The subjects of the national curriculum and higher education, standard of drugs, environment and population given to the provinces need be given back to the centre through a fresh amendment, to produce citizens that love Pakistan and shun parochialism, produce better professionals in the science and technology and make Pakistan an environment-friendly and healthy country. In view of the above-mentioned major anomalies in the 18th Amendment, it is being suggested by various think tanks and well reputed analysts that it is time to debate the 18th Amendment in the National Assembly and the Senate, so that the federation and provinces can discuss their difficulties related to this amendment and another comprehensive amendment is brought to meet the objectives of attaining the economic and defence self-reliance and making the provinces sufficiently autonomous with the overall objective of making Pakistan militarily strong and economically a true welfare state.
—The writer is a Senior Research Fellow, Strategic Vision Institute, Islamabad.