Anatomy of 18th Amendment and answers to its critics

ISLAMABAD: A lot of debate has taken place on 18th Constitutional Amendment with a little effort to educate public about it.

Questions have been raised and repeated instead of finding answers. That the amendment is overall good nevertheless problematic is an argument being framed. What are the problems has not been specified and how they are insoluble remains unexplained.

Before discussing what are being framed as “problems” attached with this amendment, highlighting the solutions it offered deserve merit as it has brought about structural changes in our system like never before. The 18th Amendment passed in April 2010 is a piece of legislation carried out with consensus; not even one lawmaker voted against it.

The reason was obvious: all parliamentary parties (17) had representation in Senator Mian Raza Rabbani-led Parliamentary Committee on Constitutional Reforms (PCCR) including Pakhtunkhwa Milli Awami Party with only one member in Parliament then.

Suggestion sought from public at large were in addition to parliamentary input; 986 proposals were received from civil society that took nine months to examine. Each amendment finalised by PCCR was subject to approval from the leadership of political parties through their representatives in the committee. This is how consensus was evolved on 104 changes in the Constitution that we have in form of 18th Amendment.

What is noteworthy in it? There are many things done for the first time, nay, history was made. This was for the first time that a Parliament refused to validate martial law. The Parliament formed after 1985 elections endorsed the changes made during martial law of Gen Ziaul Haq and Parliament set up after 2002 elections validated tampering with the Constitution done by Gen Pervez Musharraf. However, the PPP-led Parliament did entirely opposite.

Musharraf’s Legal Framework Order 2002, its amended versions and 17th Amendment to the Constitution, were repealed through 18th Amendment. A certain part of Article 270-A was unique in the constitutional history for it contained the name of a military dictator: “….under which, in consequence of the result of the referendum held of the 19th day of December, 1984, General Muhammad Ziaul Haq became the President of Pakistan…” That portion has also been deleted.

In another first, this constitutional amendment has eliminated the chance of any martial law in future. Although Gen Ayub Khan abrogated the Constitution of 1956, no military dictator has ever done this with the Constitution of 1973. Instead, it was either suspended or held in abeyance to capture power whereas Supreme Court of Pakistan validated these adventures.

The 18th Amendment has broadened the definition of treason through changes in Article 6 bringing in loop the judges who would validate in addition to generals thus ending an era of doctrine of necessity. Article 6 (2A) reads: “An act of high treason mentioned in clause (1) or clause (2) shall not be validated by any court including the Supreme Court and a High Court."

As the President of Pakistan’s power of dissolving Parliament and appointing governors have also been done away with, this is another step taken to discourage those thinking of martial law which was easily possible in past only through seizing power in the Center. Neither president can dissolve Parliament without the advice of prime minister nor can governors dissolve provincial assemblies without the advice of respective chief ministers after 18th Amendment which has heralded a new era of governance through consensus instead of coercion.

Not only any martial law is out of question, federal government has lost the right of imposing emergency in any province as was done against the NAP government in now Khyber Pakhtunkhwa and Balochistan through the imposition of Governor’s Raj during first PPP government, in Sindh during second PML-N government and in Punjab by fourth PPP government at federal level. Article 173 has been amended that says any such act requires ratification from the respective provincial assembly within 60 days.

Although there are many other noteworthy amendments wherein the presidential powers have been curtailed and Parliament has been empowered, the provincial autonomy has courted attention as well as controversy. On book, this autonomy is a giant step forward as rights over resources have been delegated to those who own them; federal government has claim over 50 percent of oil and gas though.

This devolution has also silenced the nationalist forces who would blame Islamabad and to, what they call, “Punjabi Establishment” as usurper of resources. Now, they are left with none to blame except their provincial governments in case of any grievance, according to former Senator of ANP, a nationalist party, Afrasiab Khattak who was part of the constitutional committee.

However, questions are being raised about the incapacity of the provinces to handle this empowerment. Some have concerns about curriculum as education is a provincial subject like health. International donors have also voiced objections; mostly they are about dealing with federal and provincial governments separately.

So much that this was first agenda item when UK Prime Minister David Cameron visited Pakistan in 2011. British Department for International Development (DFID) is leading international agency investing on education in Pakistan.

The framers of 18th Amendment then tried to address these concerns by offering a liaison office at federal level, an attempt resisted by bureaucracy which has also seen its powers and perks diminished after this devolution. Also, the fact remains that DFID had already been working in direct coordination with the biggest province, Punjab. Dealing with others is also possible.

Incidentally, it was British Parliament that invited the constitutional committee in London for exchanging notes after the passage of 18th Amendment in order to replicate the provincial autonomy model amid calls of separation from nationalists of Scotland and Northern Ireland due to unequal distribution of resources. The committee members were then taken to Belfast, Edinburg, and Cardiff, the provincial capitals, for discussion with nationalists on devolution.

As far as the issue of curriculum is concerned, 18th Amendment promises a forum to discuss contentious matter: Inter-Provincial Coordination Committee. Its sub-committee comprising provincial education ministers and their federal counterpart was also formed in the past for such matters.

Resolving such issues is not something next to impossible provided there is a spirit of “either convince or be convinced.” There are examples where provinces voluntarily surrender their powers to the federal government after 18th Amendment. A consensus was explored on the formation of Drug Control Authority to devise uniform policy on import of medicine and quality control, Afrasiab Khattak pointed out.

Likewise, consensus can also be explored over other issues like curriculum, cultural policies and criminal laws. Similarly, there is a Council of Common Interests (CCI) for distribution of issues relating Federal Legislative List Part 2 that deals with subjects in joint ownership of federal government and provincial government. Only eleven meetings were held from 1973 till 2010 which badly reflects on the successive governments. After 18th Amendment, there is a constitutional requirement of a CCI meeting every 90 days to be headed by prime minister and attended by chief ministers, among other members, this obligation continues to be violated.

Another question relating the incapacity of the provinces to use power and resources is concerned, the capacity issue is not only at provincial level. The situation at federal level is the same.

A visit to any government department is enough to give an idea of the kind of bureaucracy we have. There is a degeneration everywhere without exception. Mere blaming provincial government is not the answer; focusing on their training and meritocracy is the only way forward.

Senator Raza Rabbani has answered this question at the last page of his book he wrote on 18th Amendment and history of constitutionalism: Biography of Pakistani Federalism. “Suppose I agree to the contention, he writes, that there is lack of capacity in the provinces but the subject of health and education have remained with the federal government from 1947 till 2010. You tell me what contributions have been made? Literacy rate is 100 percent? Health coverage is 100 percent?” he asks.

Capacity is lacking on both sides, he continues. If the question is of capacity, the provinces can have training sessions. Many subjects which have been devolved to the provinces, their line ministries were already present at the provincial level, he argues.

Distribution of fiscal resources is one of the most important issues as the 7th National Finance Commission Award announced in 2009 provided for distributing 57 percent of the funds among provinces in line with the agreed formula and remaining 43 percent were allocated for the federal government. This was entirely opposite to what Gen Musharraf did, using his discretion while announcing 6th NFC award in 2006. He had kept 57 percent for the federal government and remaining 43 percent diverted to the provinces.

The 7th NFC award was made part of the Constitution through 18th Amendment which set this formula of 57-43 as a minimum limit as next award may increase but can’t decrease this share. New award is not being announced due to the fear that provinces will demand increase as share in the natural resources transferred to them through this 18th Amendment is not being paid.

Instead, the federal government is demanding an increase of three percent to meet defence expenditure. Although Punjab is among those who are not ready to surrender from the allocated share, it has separately contributed a substantial amount for the fencing on Pak-Afghan border as has been confirmed by DG ISPR in his late Wednesday’s press conference.

Meanwhile, Balochistan and Sindh have not yet pressed on the royalty on natural resources which was due to them after the enforcement of devolution plan.

All these challenges being posed as impossible to resolve can be settled. Changing mindset in line with the 18th Amendment and patience to provinces’ point of view is what is needed. From now onward, the consensus will have to evolve through negotiation. Gone are the days when it could be manufactured through repression.