18th Amendment: much ado about nothing

The announcement of the federal government to revisit the 18^th Amendment and fill the gaps therein in the backdrop of the coronavirus pandemic has not only ignited a new debate but has also caused a furor amongst the amendment’s supporters who have vowed to resist it at all costs. The Pakistan Peoples Party (PPP), the Awami National Party (ANP) and the Qaumi Watan Party (QWP) have, in a chorus, declared that the 18^th Amendment is a sacred part of the Constitution that acts as a guarantor of an amicable relationship between the federation and its federating units. The repeated outburst against the 18^th Amendment requires a dispassionate analysis as it is a logical conclusion of a historical process dating back to the British colonial era.

Self-rule had been the most cherished demand of the people living under the colonial rulers in the previous century. In the context of Indo-Pak Subcontinent, federalism akin to confederation had been on the high agenda of the All India Muslim League (AIML). Even after independence, federalism remained one of the thorniest issues in the history of Pakistan. Denial of participation and ignoring cultural identities caused a sense of alienation among the smaller provinces and consequently gave rise to separatist tendencies which resulted in the separation of East Pakistan. The 1973 Constitution, based upon the consensus of all stakeholders, tried to resolve the thorny issue of distributing legislative powers between the Centre and provinces with the help of Federal, Concurrent and Residual Lists. While framing the Constitution, the then prime minister of Pakistan had given an assurance that with the passage of time the concurrent list would be abolished. However, with successive military takeovers the original constitution was defaced, and it was in this background that the 18^th Amendment was passed.

It is important to dispel the misunderstanding that the 18^th Amendment only granted fiscal and legislative powers to the provinces or regulated the distribution of revenues. As a matter of fact, these powers already formed part of the Constitution prior to the 18^th Amendment. For instance, Article 153 provided for the Council of Common Interest (CCI). Article 156 existed for National Economic Council (NEC). Articles 158-161 not only provide for provinces’ rights over natural gas hydroelectric or thermal power installation and power lines but also a National Finance Commission (NFC) to regulate provinces’ share in national revenue. The amendment to Article 172(3) has now provided for the joint ownership of oil, mineral and natural gas within the provinces, but already existed.

We must also be mindful of the fact that the seventh NFC Award was announced in December 2009 before the commencement of the 18^th Amendment in 2010. The 18^th Amendment only provided constitutional protection to the NFC Award and is hailed as a landmark achievement towards the goal of fiscal federalism as it accepted the principle that the distribution of resources between the federal government and the provinces would not merely be based upon population but poverty, revenue generation and inverse population density would also be factored in.

The 18^th Amendment not only operationalised fiscal federalism but also reestablished the writ of democracy in the country. It amended Articles 6 and 270 of the Constitution to block the way to military adventurism to topple an elected government or abrogate, suspend or subvert the Constitution. Similarly, the judicial validation of unconstitutional military interventions was also prohibited. Moreover, the abolition of the concurrent list of legislative subjects is another fundamental change. With the striking out of the list, provinces now have the exclusive domain to legislate on important matters such as criminal law, contracts, transfer of property, labour welfare, marriage and divorce. Further striking features include the repealing of Article 58(2)(B) by curtailing the executive powers of the president, forming the CCI into a more substantive body, rationalising the size of the cabinet, re-naming NWFP as Khyber Pakhtunkhwa (K-P), increasing the representation of provinces on the NEC, and empowering the provinces to raise domestic or foreign loans with the consent of the federal government.

The AGN Qazi methodology, based on the constitutional provisions for working out net hydel profit figures, was given in 1991 almost two decades before the 18^th Amendment. It was developed through consensus of all stakeholders, including the Centre, now K-P, the NFC, federal cabinet and CCI, and received the final seal of the Supreme Court in 1997. While the hullaballoo about 18^th Amendment is being made, interestingly in 2016 the Pakistan Tehreek-e-Insaf (PTI) government of K-P presented a list of 24 demands before the federation wherein the then chief minister of the province pleaded for getting the constitutional rights of the province within the ambit of the Constitution. Having the support of the party’s central chief, implementation of the AGN Qazi methodology was one of their main demands.

Even if we take into account the subjects on the concurrent list before the passage of the 18^th Amendment, the record shows that the provinces had established and managed almost all of the elementary schools, colleges, institutes, universities, hospitals, developed industries, agriculture, local government systems, road networks, dams, irrigation systems, sports, maintained public order and other areas of governance.

The true understanding of the distribution of legislative, administrative and financial powers between the federation and provinces can be done not by reading one provision of the Constitution but by reading the whole in juxtaposition with elaboration of powers related to various schedules of the Constitution. Since everything is clearly written in the Constitution, why is there a need to spread confusion and create upheaval? It is just a case of “much ado about nothing”. It is better to focus on governance by fuller implementation of the Constitution, laws, better tax collection and improved international trade particularly in the region.

Published in The Express Tribune, May 6^th, 2020.

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