The 1973 constitution was a consensus document. It was formulated and agreed by all political parties, and arrived at with great difficulty after the trauma of the 1971 war. Subsequent military governments mauled it beyond recognition.
The 18th Amendment restores the division of powers between the federation and the provinces, abolishing the dyarchy in the concurrent list. The subjects enumerated in the federal legislative list fall under the purview of the federal government. All other subjects go to the provinces – except criminal law (procedure and evidence) which is common to both.
The federal legislative list (Part I) has 53 entries; the federal cabinet deals with these. The federal list (Part II) has 18 entries and falls under the purview of the Council of Common Interests. (Under Article 154, read with Article 97).
Both the federal cabinet and the CCI are responsible to parliament. This is a very simple division which can be easily understood by every citizen. Deliberate, incessant propaganda makes it complex – causing total confusion.
The 53 items of the federal list part I (including the 10 related to taxation) yield only six federal ministries. The rest are superfluous. These are: defence (Entries 1, 2 &18), foreign affairs (Entries 3, 4, 5, 6, 17 & 32), finance (Entries 8, 9, 10, 12, 15, 16, 28, 29, 37, 42-54), communications (Entries 7, 22, 23, 34 & 35), commerce (Entries 19, 20, 24, 25, 26, 27, 30, 31, 36 & 39) and law (Entries 11, 13, 14, 41, 55, 56, 57, 58 & 59).
The 18 entries enumerated in the federal legislative list (part II) fall under the CCI. These include railways , Wapda (both were provincial subjects in the 1956 and 1962 Constitutions), mineral oil and gas, electricity (excluding the provincial part under Article 157), major ports, census, debt management, professions, standards (in institutions of higher education), inter-provincial coordination, and regulatory bodies under federal law. All other subjects are the business of the provinces.
Instead of limiting its mandate to six ministries, the federal cabinet has not only expanded its ministries to 34 but also created ministries for subjects that fall under the ambit of the CCI.
Further, it has also created ministries on the subjects not enumerated in the federal list, which solely come under the domain of the provinces. Even before the 18th Amendment, federal executive authority under Article 97 of the constitution never extended to the concurrent list and the ministries devolved to provinces were created on the subjects of the concurrent list unconstitutionally.
The purpose behind creating 34 ministries instead of the constitutionally mandated six is to accommodate the ‘elite’ Pakistan Administrative Service Officers and sundry party loyalists. The PAS was never sanctioned by parliament but continues to claim its legitimacy from the 1954 Civil Service of Pakistan Rules enacted by Governor General Ghulam Muhammad soon after the dissolution of the Constituent Assembly in October, 1954.
These ‘elite’ services of Pakistan not only want to hang on to the maximum posts of grade 21 and 22 (therefore, the continued existence of 28 superfluous ministries) but also continue to operate all the (loss-making) state enterprises which have been an unending bane for the economy of Pakistan. Bad governance by these superfluous federal ministries and federally operated state corporations has accumulated a colossal circular debt.
The state is unable to pay these bills, the economy is in shambles and Covid-19 has made it worse. So what does the federal government do? It says: well, let’s scapegoat the 18th Amendment! And see if we can squeeze out some money from the NFC.
The current storm against the 18th Amendment and the NFC is to once more cover up their failures and serious acts of omission and commission. They have even created a Ministry of National Harmony. Most of the ministries are either replicas of portfolios in the provinces or extensions of the above mentioned six ministries. For example health, education, food security, housing, narcotics, states & frontier affairs, privatization, religious affairs etc are all superfluous. The federal government has two major expenses: defence and debt servicing, more of the debt servicing due to loans on federal ministries created unconstitutionally.
The Ministry of Finance in any case receives one percent directly from the National Finance Commission Award (for tax collection service) funneled to the Federal Board of Revenue. This amount is more than sufficient for its operations.
Therefore, the rest of the four ministries (including finance) should not be expending any more than Rs100 billion per annum, given their staff strength and scope.
If the target revenue of Rs5500 billion this year is met, the federal government (according to its agreed share of 42.5 percent plus one percent – on account of FBR’s tax collection) would be entitled to Rs2250 billion from the NFC Award.
It also receives Rs700-1000 billion non-tax revenue. Therefore, it can easily meet the expenses of its six ministries without resorting to heavy external borrowing, which continues to create new burdens for the economy.
The federal government has taken over CCI subjects and continues to sanction lucrative positions for its several party loyalists, retired officers and their favourite errant boys and girls in the ‘elite’ Pakistan Administrative Services. The coveted lucrative positions of federal secretaries, CEOs of state-run enterprises, and chairperson positions of various commissions are criminally perpetuated causing severe losses to the economy.
In order to camouflage this massive contravention of the constitution (34 ministries and 43 divisions) centrist stalwarts evoke ‘national interest’/ emergencies and scapegoat the 18th Amendment and the NFC instead.
Islamabad needs only six ministries with an operating budget of Rs1000 billion. The remaining Rs4500 billion must go to the provinces and local governments, the locus of the common citizen.
Ending this illegitimate dichotomy at the centre, living within our constitutional mandate, and taking care of the ordinary taxpaying citizen is the only way forward. If not, the federation may weaken irrevocably.
The media and the state should both take note and not get taken in by this false narrative generated by the federal bureaucracy.
The writer is a former advocate general of Sindh.
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