Making of the Amendment

A rollback would be disastrous to an already fragile democratic culture. A lack of implementation could be equally damaging


hree well drafted documents - the 1973 constitution, the Charter of Democracy (COD) and the 18th Amendment - set the direction of democracy in Pakistan. On paper, that is; on ground, there is many a slip between agreeing to a script and its execution.

While in theory, every democratic legislation can be debated and improved upon, in practical terms a rollback of the 18th Amendment would be disastrous for our already fragile democratic culture. A lack of implementation i.e. transfer of power from the Centre to the provinces and from the provincial governments to the local governments would be equally damaging.

Had our political leaders abided by the letter and spirit of the 1973 constitution, there would be no need for the COD or the 18th Amendment. Many politicians opposed to Zulfikar Ali Bhutto not only welcomed the 1977 martial law but also provided silent, at times even verbal, support to the postponement of elections.

The framers of the constitution had agreed to a review of the legislative lists and distribution of resources by 1983.

The 18th Amendment was by far the most thoroughly debated law. It was discussed for almost nine months so that when it was placed before a joint session of the parliament there was no dissent. It is the only document adopted by 16 political parties and the only constitutional amendment ahead of which suggestions were solicited from the lay public. (Some 900 suggestions were received).

The COD was a historic document. Had the Pakistan Peoples Party (PPP) and the Pakistan Muslim League-Nawaz (PML -N) honoured it, Gen Pervez Musharraf's government would have fallen as a result of a popular movement against it and not after the assassination of former prime minister Benazir Bhutto. Accepting the National Reconciliation Ordinance (NRO) in violation of the COD damaged her politically.

There was unprecedented participation during the nine months of discussions leading to the 18th Amendment. Each article of the constitution was discussed not only by members of the joint parliamentary committee but also by key leaders and core and central executive committees of the political parties. The recent claim that there was no debate is baseless.

When the PPP won the 2008 elections and the PML-N decided to join hands with it on the condition that the deposed judges would be restored, Asif Ali Zardari held a meeting of his party’s core committee to discuss transfer of presidential power to the parliament.

Later, Zardari also discussed the same with former prime minister Nawaz Sharif, Awami National Party president Asfandyar Wali and other leaders. The extent of provincial autonomy had not enjoyed political consensus previously and the parties demanding provincial autonomy most aggressively had been branded as ‘traitors’.

The 18th Amendment was a result of the Charter of Democracy agreed upon between two former prime ministers, Benazir Bhutto and Mian Muhammad Nawaz Sharif. When the matter came up it was decided that other parties also be consulted in pursuit of consensus.

However, both the PPP and the PML-N have a sorry record in terms of implementation of the 18th Amendment. While they warn the incumbent government of dire consequences in case of an attempt to roll back the constitutional advance, their leaders also need to answer a few questions. Why was the devolution of powers and transfer of necessary resources from the Centre to provinces and from provinces to grassroots level not completed during the tenures of the PPP and the PML-N?

Strangely, a 1973 draft on the subject matter, agreed to by the then government and the joint opposition could not be located.

Former federal minister and Senator Mian Raza Rabbani confirmed that the written draft of the agreement between ZAB and the opposition in regard to the concurrent list was found missing when they started work on the amendment. “Yes, it is true and quite surprising,” he told me adding that when he inquired about it he was told that no formal draft existed and most of it was agreed upon by the parties verbally.

It can be argued that had the issue of provincial autonomy been satisfactorily settled soon after Independence, the secession of East Pakistan would not have occurred. It might also have prevented the promulgation of martial law in the country.

Mainstream political parties - including the PPP, the PML-N and the ANP - have reacted sharply to statements by some leaders indicating that the government wants to initiate a debate on the 18th Amendment. PPP chairman Bilawal Bhutto Zardari has even warned the Centre against any attempt to roll back the consensus document. While cautiously admitting the possibility of a discussion Raza Rabbani has pointed out that from day one certain quarters have wanted to roll back at least the transfer of some of the subjects to the provinces.

Raza was among those had resigned from the PPP government when former prime minister Yousuf Raza Gillani decided to retain the ministries for education, health and labour. Prior to his resignation he had sent a letter to the prime minister arguing that this would not sit well with the spirit of the amendment.

Constant interference by powerful quarters - through ‘managing’ of elections and ‘making’ of governments - is often blamed for the failure of a democratic culture to flourish. However, mainstream political parties should also hold themselves accountable for not implementing what they agreed upon: the 1973 constitution, the COD and the 18th Amendment.

In a democracy, the parliament can debate every subject and amend any constitutional provisions other than those barred by the constitution itself. Certain quarters have continued to argue that subjects like education and health relate to ‘national security’. Therefore, the federal governments continue to have these ministries despite these subjects being transferred to the provinces under the 18th Amendment. It was so even during the PPP and PML-N governments.

It was Chaudhry Shujaat Hussain, considered the civilian voice of these quarters, who warned that transfer of education to provinces was a mistake. He said it could lead to confusion if history curricula were distorted. Interestingly, his PML-Q, too, had supported the 18th Amendment.

I had been in Islamabad during the consultations on the 18th Amendment and remember finding the legislators and party leaders tight-lipped. Later, journalists were told that the secrecy was necessary since leaks could result in pressure brought on certain parties. This was unheard of during the making of the 1973 constitution.

While it would be wrong to say that the parliament can’t discuss or amend the 18th Amendment, any move to transfer back powers from provinces to the Centre can create problems and stir a political crisis. The Pakistan Peoples Party, which is ruling in Sindh, can at least do its part by devolving powers to the grassroots level. Its Sindh government also faces criticism for its failure to constitute a provincial finance commission.

The writer is a senior columnist and analyst for GEO, The News and Jang. He tweets at     @MazharAbbasGEO

Making of the Amendment