In defence of the 18th Amendment
We can at least give some credit to the 18th Amendment for allowing two peaceful democratic transitions of power
The writer is a lawyer based in Lahore and also teaches at the Lahore University of Management Sciences. He holds an LLM. from New York University where he was a Hauser Global Scholar. He tweets at @HNiaziii
As Pakistan reels from the inevitable gloom and doom that comes in the aftermath of yet another capitulation before extremist groups, the spectre of another threat to democracy lurks in the background. Rumours abound, not without credence, of a move to repeal — or at least — water down the 18th Amendment to the constitution. An Amendment, that some quarters have called a catalyst for turning Pakistan into a confederation. Such claims fail to understand both the importance of the amendment and its true impact. A move to repeal the 18th Amendment, if it were to happen, would be disastrous for Pakistan’s fragile democracy.
Before the 18th Amendment, the Constitution’s claim that Pakistan was a federation was nothing more than a hyperbolic statement on a piece of paper. The 18th Amendment paved the way for Pakistan to become a proper federation, rather than the centralised unitary system it had been for so long. It was the 18th Amendment that realised what federal republics all over the world have known for centuries: that federalism is far better than a unitary system because it prevents the tyranny that comes so easily when power is concentrated in one place. The mitigation of the circumstances that give rise to tyranny is necessary in a country that has for so long battled with strongman rulers dictating policy from the center. When convincing the American people that a federal system would be to their benefit, Alexander Hamilton would make this same point in the Federalist 28: ‘Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same dispositions towards the general government.’
While correlation does not imply causation, we can at least give some credit to the 18th Amendment for allowing two peaceful democratic transitions of power in its wake. This by itself should be argument enough for all political parties to be united to make sure that the repeal of the 18th Amendment never happens. However, to put the rumblings of repeal to rest, let me point out some other distinct advantages of provincial autonomy that might sway those who still believe that federalism is a bad idea to see the light.
The most obvious advantage of federalism is the promotion of efficiency through the division of labour. The provinces are closer and more in touch with local issues, therefore, it makes sense to allocate responsibility for their particular issues into their hands. The Federal Government can then concentrate on larger national issues, such as national security, transportation and our ballooning national debt. Another, lesser known, benefit of federalism is the promotion of experimentation within the provinces that can lead to innovative policies and legislation that can serve as models for the rest of the country. This is why Justice Brandeis of the Supreme Court of the United States said of federalism that: ‘a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the entire country.’ The state of Massachusetts would try such a novel experiment by creating a universal healthcare system. A system that would prove so successful, it would galvanise the Democratic Party to replicate it for the entire nation.
It should not be a surprise that voter participation increased in Pakistan’s elections at both the provincial and federal levels after the 18th amendment, since this is another clear advantage of creating a system of provincial autonomy. Federalism fosters greater citizen participation in government. To the people living in each respective province, local governments and provincial legislatures are far more approachable and far less enervated than the Federal Government — which may never be able to understand their specific geographic and cultural issues. They will realise that their localised issues are far more likely to be addressed by the provinces than the Federal Government, because it is easier for the provinces to react to these issues.
Of course, none of the benefits I have described would amount for anything if the 18th Amendment hadn’t given the provinces autonomy and ownership over their own resources. The greatest legacy of the 18th Amendment was with regards to its restructuring of the National Finance Commission (NFC) award. The insertion of Article 160 (3A) meant that the share of the provinces in each NFC award could not be less than the share given in the previous award. Nor could the Federal Government encroach upon the 57% share of fiscal resources given to the provinces. This was by far the most powerful measure to ensure provincial autonomy that the 18th Amendment brought about. Exploitation by the center of a province’s resources can lead to friction of catastrophic proportions. Think about a one such incident in our country’s history that happened in 1971 and you will realise what I mean. Even if the rest of the 18th Amendment stands, if the NFC and share of fiscal resources given to the provinces is tampered with, the 18th Amendment will have lost its soul.
Critics of the 18th Amendment believe that by restraining the federal government from limiting the resources allocated to the provinces, the 18th Amendment has limited expenditure for the single biggest priority for Pakistan: national security. We don’t need to get into a debate about whether this should be Pakistan’s number one priority, if we can show that this claim is just untrue. Dr Hafeez Pasha debunks this myth and writes that in 2016-2017 the net revenue receipts of the Federal Government were Rs2583 billion, while the expenditure needed for debt servicing and defense was Rs2237 billion. This left a surplus of Rs347 billion for the federal government to meet other expenses. What this shows is that Pakistan’s favourite monetary splurge project: defence spending, won’t be facing any financial crisis because of the 18th Amendment.
The distinct advantages of federalism: its prevention of tyranny, fostering of innovation, promotion of efficiency, and increased citizen participation should make all political parties resolute in resisting any move to repeal the 18th Amendment. A country that has repeatedly tried and failed to extract beneficial results from the ‘strong center’ model of government should be prevented from a relapse that may be nigh impossible to rehabilitate again.
Published in The Express Tribune, November 6th, 2018.
Before the 18th Amendment, the Constitution’s claim that Pakistan was a federation was nothing more than a hyperbolic statement on a piece of paper. The 18th Amendment paved the way for Pakistan to become a proper federation, rather than the centralised unitary system it had been for so long. It was the 18th Amendment that realised what federal republics all over the world have known for centuries: that federalism is far better than a unitary system because it prevents the tyranny that comes so easily when power is concentrated in one place. The mitigation of the circumstances that give rise to tyranny is necessary in a country that has for so long battled with strongman rulers dictating policy from the center. When convincing the American people that a federal system would be to their benefit, Alexander Hamilton would make this same point in the Federalist 28: ‘Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same dispositions towards the general government.’
While correlation does not imply causation, we can at least give some credit to the 18th Amendment for allowing two peaceful democratic transitions of power in its wake. This by itself should be argument enough for all political parties to be united to make sure that the repeal of the 18th Amendment never happens. However, to put the rumblings of repeal to rest, let me point out some other distinct advantages of provincial autonomy that might sway those who still believe that federalism is a bad idea to see the light.
The most obvious advantage of federalism is the promotion of efficiency through the division of labour. The provinces are closer and more in touch with local issues, therefore, it makes sense to allocate responsibility for their particular issues into their hands. The Federal Government can then concentrate on larger national issues, such as national security, transportation and our ballooning national debt. Another, lesser known, benefit of federalism is the promotion of experimentation within the provinces that can lead to innovative policies and legislation that can serve as models for the rest of the country. This is why Justice Brandeis of the Supreme Court of the United States said of federalism that: ‘a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the entire country.’ The state of Massachusetts would try such a novel experiment by creating a universal healthcare system. A system that would prove so successful, it would galvanise the Democratic Party to replicate it for the entire nation.
It should not be a surprise that voter participation increased in Pakistan’s elections at both the provincial and federal levels after the 18th amendment, since this is another clear advantage of creating a system of provincial autonomy. Federalism fosters greater citizen participation in government. To the people living in each respective province, local governments and provincial legislatures are far more approachable and far less enervated than the Federal Government — which may never be able to understand their specific geographic and cultural issues. They will realise that their localised issues are far more likely to be addressed by the provinces than the Federal Government, because it is easier for the provinces to react to these issues.
Of course, none of the benefits I have described would amount for anything if the 18th Amendment hadn’t given the provinces autonomy and ownership over their own resources. The greatest legacy of the 18th Amendment was with regards to its restructuring of the National Finance Commission (NFC) award. The insertion of Article 160 (3A) meant that the share of the provinces in each NFC award could not be less than the share given in the previous award. Nor could the Federal Government encroach upon the 57% share of fiscal resources given to the provinces. This was by far the most powerful measure to ensure provincial autonomy that the 18th Amendment brought about. Exploitation by the center of a province’s resources can lead to friction of catastrophic proportions. Think about a one such incident in our country’s history that happened in 1971 and you will realise what I mean. Even if the rest of the 18th Amendment stands, if the NFC and share of fiscal resources given to the provinces is tampered with, the 18th Amendment will have lost its soul.
Critics of the 18th Amendment believe that by restraining the federal government from limiting the resources allocated to the provinces, the 18th Amendment has limited expenditure for the single biggest priority for Pakistan: national security. We don’t need to get into a debate about whether this should be Pakistan’s number one priority, if we can show that this claim is just untrue. Dr Hafeez Pasha debunks this myth and writes that in 2016-2017 the net revenue receipts of the Federal Government were Rs2583 billion, while the expenditure needed for debt servicing and defense was Rs2237 billion. This left a surplus of Rs347 billion for the federal government to meet other expenses. What this shows is that Pakistan’s favourite monetary splurge project: defence spending, won’t be facing any financial crisis because of the 18th Amendment.
The distinct advantages of federalism: its prevention of tyranny, fostering of innovation, promotion of efficiency, and increased citizen participation should make all political parties resolute in resisting any move to repeal the 18th Amendment. A country that has repeatedly tried and failed to extract beneficial results from the ‘strong center’ model of government should be prevented from a relapse that may be nigh impossible to rehabilitate again.
Published in The Express Tribune, November 6th, 2018.