The Charter of Democracy proposed the abolishment of the Concurrent Legislative List to address the perennial strains between the provinces and the federation over power-sharing. This was achieved four years later, as provincial autonomy was embedded in the 18th Amendment – retrieving the parliamentary form of government from a quasi-presidential one. A nostrum for the power-hoarding federation’s predilection for muddling through provincial affairs, this amendment empowered the provinces in line with Jinnah’s fourteen points, four of which were focused on provincial autonomy.
At the time of the passage of the 1973 constitution, consensus was drawn over omission of the Concurrent Legislative List after a period of ten years but due to the fragility of the system, oscillating between democracy and dictatorship, this could only be achieved after a prolonged period of 37 years. For a nascent democracy picking up pieces, it was a prodigious achievement – unanimously passed by parliament with not one vote cast in opposition. The Parliamentary Committee for Constitutional Reforms that drafted the amendment had representation of all political parties including those with a single member in parliament. Then why in the third consecutive democratic term is the 18th Amendment being called into question?
The only province where the PTI could not form government after the 2018 elections was Sindh, which may see political adventures as long as the PTI holds onto power in the centre. Here the 18th Amendment comes into play.
For the dissolution of a provincial assembly, provision 37 of the 18th Amendment (Article 112) entails that the governor can dissolve the provincial assembly ‘if’ the CM has advised so – provided that a vote of no-confidence has not been passed against the CM. The governor may also dissolve the provincial assembly in his discretion where a vote of no-confidence has been passed against the chief minister. Now for a no-confidence move, the opposition in the Sindh Assembly lacks the required tally.
There have been hints at a forward bloc within the PPP. However, even a forward bloc is no longer an option because Article 63A after the 18th Amendment calls for the disqualification of a member of the assembly on grounds of defection. It states that if a member of a parliamentary party votes or abstains from voting in the house contrary to any direction issued by the respective party to which he belongs, in relation to: ‘… a vote of confidence or a vote of no-confidence’, the party head can file a report to the election commission and the member shall be delisted.
Inasmuch the switching of loyalties may not be all plain sailing as popular opinion holds; the only option left is to encroach on the dominion and with federal powers marshaled against the 18th Amendment, provincial autonomy makes it to the hit list. An important case indicating a challenge to the subject of provincial autonomy is the ownership of JPMC, NICH and NICVD – three major healthcare facilities managed by Sindh.
The Sindh High Court had nullified the devolution of these hospitals under the 18th Amendment Act on July 4, 2016. On a provincial government plea challenging the SHC ruling, the Supreme Court stayed the transfer of the hospitals to the federal government on July 24, 2016. The court maintained that it was not in the SHC jurisdiction to decide a matter which could be a dispute between the federation and the provinces under Article 184 and the matter rested in the domain of the Supreme Court exclusively. Two years later, on the Sindh government’s appeal pertaining to the issue, the SC ruled that the ownership of the respective hospitals shall remain with the centre.
However, clearing all ambiguities about power-sharing, the 18th Amendment leaves no space for a dispute between the federal government and the provinces. Health was devolved with the abolishment of the Concurrent Legislative List; from legislation to administration, the subject lies within the provincial domain restrictedly, invalidating any such ownership dispute. Though Article 184(3) does empower the SC to intervene in the face of a violation of people’s fundamental rights, this is one atypical case where some well-performing institutions are snatched from a province.
Accordingly, PPP Co-Chair Bilawal Bhutto’s argument in parliament, that the decisions of the two-thirds majority of parliament cannot be undone with a stroke of a pen, carries weight on the basis of the preeminence of parliament enshrined in the constitution through the 18th Amendment as Article 239(5) now states: “No amendment of the constitution shall be called in question in any court on any ground whatsoever” – which connotes that the 18th Amendment can be questioned or rolled back by the Parliament alone.
As Justice Maqbool Baqar writes in his dissenting note on the same case: “In order to maintain and preserve the federal nature of our constitution, our efforts should be to interpret the constitutional provisions so as to preserve the provincial autonomy rather than to dilute the same.” The federal forces arrayed against the 18th Amendment should see the light and realise that centralisation is counter to the democratic scheme, that attacks on provincial autonomy tantamount to attacking the heterogeneity of Pakistan. It was this disallowance of political, economic and cultural rights of provinces by centrist forces that resulted in the division of the nation in 1971. The prime minister’s glaring references to Ayub regime concurrently only make one reminisce about the horrors of one-unit scheme.
Meanwhile, parliament should take the lead and compel the federation to build upon the advances of the 18th Amendment and also pay heed to Shaheed Benazir Bhutto’s vision of establishing a constitutional court to deal with constitutional law. Such critical issues have a tendency to stoke a clash between institutions and only parliament through the 18th Amendment can avoid them. Because the 18th Amendment comes about as parliament’s savior, it is the soul of democracy that keeps all the pillars that the state stands on within their bounds. And parliament must make the most of it.
The writer is a freelance contributor. Twitter: MaleehaManzoor