Why was the 18th Amendment enacted? To ensure provincial autonomy promised in the constitution, to restore the constitution to its original form, purge it from amendments made during the martial law regimes and finally to secure democracy from frequent military interventions.
All agreed upon this in London, while signing the Charter of Democracy in 2006. About a hundred articles of the constitution got amended in the process in 2010. Did it achieve those objectives and changed the people’s lot? No. Reasons? The intentions behind it were less than clear as were the methods adopted.
Why was provincial autonomy required when the regional and international trends were in favour of a strong federation to cope with globalization?
The only plausible answer one finds is the lack of imagination to deal with issues of the relevant time and dearth of deeper understanding of the constitutional scheme and principles. The limited debate in parliament reflects this. The slogan of provincial autonomy was a handy tool to blame the establishment and federation for the economic disparities and deprivations amongst the people of provinces.
The political elite was unwilling to admit its fault for its failures during twenty years (1988-1999 & 2002-2010). Their alleged weakness for worldly gains while in office resulted in the dissipation of political courage that undermined their capacity to hold across-the-board accountability and question the various interventions in policy. The dream of an egalitarian society and social, economic and political justice promised in the principles of policy embedded in the constitution remained unfulfilled.
The Government of India Act, 1935 was the template used for the constitution of 1973. Unthoughtful and excessive tweaking with the constitutional scheme to secure an imaginary political stability was not possible after many interpolations therein. Thus the abolition of the concurrent legislative list and squeezing of the financial resources of the federation by making the NFC award unchangeable downwards only created stresses that were now being used as justification to undo any good sought to be achieved by the said amendment.
If the purpose of the amendment was to financially empower the provinces then that objective could be achieved without weakening the federation, that was burdened with defence and foreign debt servicing, by giving well defined taxing powers to the provinces under a new provincial legislative list. It was hardly realized that countries, which had a single list system like the US and Australia, there the states/provinces had their state constitutions. The abolition of the concurrent legislative list only increased confusion and unnecessary litigation before courts, which had huge backlog. Again, the joint ownership of oil, gas and natural resources led to endless litigation pending in the courts for the last several years. Political questions should not be decided in courts.
There are many legislative subjects, which by their very nature should go to the federation. No scientific study was undertaken in this regard. Legislative lists of any three countries from the British Commonwealth of Nations, having a federal system, would show a trend of taking out subjects from the provincial lists and placing them in either the concurrent or federal lists.
The sincerity of the purpose behind the amendment and political maturity of the leadership can be judged from a simple fact. Under Article 140, a local government system was entrenched in the constitution but there was no proper devolution of powers to the local governments. The last elections to the local governments were held under a threat of contempt from the Supreme Court. Provinces were unwilling to share their powers with local governments.
Provincial autonomy is promised in the preamble of the constitution. it can be achieved without compromising on the viability of the federation. It is important for rule of law and the liberty of the people that the legislative powers of the federation and the provinces are clearly defined in well-considered legislative lists. The taxing power of the federation and the provinces also need to be clearly laid out and interdependence needs to be minimized if not ended.
The third tier of government – the local government system – must be strengthened and activated by securing their elections and financial powers directly under the constitution like some other countries. The taxing power of the federation has been weakened for several reasons including the technical view taken in judicial decisions. It needs to be invigorated by making necessary amendments.
The 18th Amendment empowered parliament inter alia by giving it checks over the ordinance-making power of the executive, entrustment of functions provinces by the federation and vice versa and in the imposition of emergency. The Senate got some role in financial matters. The idea of empowering parliament created stresses on some other areas of the constitution. The executive became weaker.
It is important that parliament takes the lead in all matters and fully realizes the ideal of responsible government. The chief executives of the government hardly attend parliamentary sessions due to lack of political culture and conventions, which are the essence of democracy. Party/personal loyalty of members of parliament to the leaders mitigates their ability to question government policy in parliament. The opposition is marginalized in the process. It is critical for the future of parliamentary democracy in Pakistan that its parliament is empowered.
Some new fundamental rights were added by the 18th Amendment including Article 10 A, which guarantees due process and fair trial, Article 19 A, secures the right to freedom of information and under Article 25 A, the right to free education up to sixteen years of age.
These and all other fundamental rights remain an elusive dream for the common citizen. These rights are a luxury for those who can afford to enforce them. Unless the state, against whose arbitrariness and transgressions these rights are a guarantee, mends its ways, these rights remain only ornamental. The state has no resource to fulfill its promises.
Many amendments made in the constitution during the previous military regimes still find place in the constitution. Some of those amendments cannot be reconciled with the changes made through the 18th Amendment. The original constitution envisaged a strong prime minister but amendments thereafter weakened his position in the name of checks on his powers. A literal interpretation of the constitution led to some decisions that further undermined that office. The claim to restore the constitution to its original form is only a political gimmick and an indirect attempt to rule the living by the dead. Each generation has the right to improve its lot and to make changes in the constitution to keep pace with the changing times.
The 18th Amendment is a manifestation of the will of the people although it may have some imperfections. Any good achieved by the 18th Amendment must be preserved. The constitution does not stop parliament from making improvements if thought fit to meet the challenges of the time. People are the guardians of the constitution and democracy. Ensure them bread and education. The rest shall follow.
The writer is an advocate of the Supreme Court and former additional attorney general for Pakistan.
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