18th Amendment and the state

The state, till the 18th, assumed a more central role in our national affairs

Shahzad Chaudhry May 10, 2020

There were effectively two separate costs to the passing of the 18th Amendment. One was the 19th Amendment which was structured after the Supreme Court reverted the 18th to the Parliament for reconsideration on grounds of challenging and altering the trichotomy of power which the SC considered the touchstone of basic structure in the constitution (there is a simpler translation of it but I will come to that later); and second, the passing over of the opportunity to do away say with something as thorny as the NAB Ordinance which had established permanence in the Constitution.

The PPP government of the time established a Parliamentary Committee on Constitutional Reform (PCCR) to cleanse the Constitution of what had altered the face of parliamentary democracy over two tenures of intervening military rule and defaced, in their opinion, its democratic credentials. To begin with it probably wasn’t a hideous move to arrogate more authority to the perpetually reelected political elites in respective provinces but it may have crept in over time as a possible windfall. The full effect of it though found meaning over the ten years since the amendment, raising questions over real purpose behind the amendment.

The 18th had a very wide ambit. It was meant to bring the spirit back; it devolved power to the provinces and reduced the scope of executive authority at the Centre. It established structures or refined those with mandatory jurisdiction of concurrence by the provinces. To many the spirit of the 18th tilted too far to border on becoming confederal from federal. (Supreme Court missed this one). More pertinently, it sought to bridle the SC with the power to appoint judges to the bench in higher judiciary. It raised alarm bells across the power spectrum; more so at the very sensitive SC of the time.

And what may again be principally right — much the rule in established democracies like the United States of America — the appointment of judges to the higher judiciary was made subservient to a parliamentary approval. This is what irked the SC. It would not accept any intervention in its domain though she couched it well in ‘judicial independence’ weighted with the argument of basic structure of the constitution. SC’s response was patently institutional. Broader perception likened this part of the amendment to fielding own umpires. Whether the PCCR so intended is another matter and even the SC did not delve much into the intent and dealt only with the merits of the case but intent has lurked as a lingering concern. Just as the initiators masked their intent the disposers masked their interests. Ironically, Pakistani democracy may choose of the American tradition in judicial appointment but will per se consider presidential system injurious to democracy. This is a classic case of pick-and-choose. The whole argument is bigoted in its construct.

The political class is alleged to have misappropriated power to pilfer public money for personal enrichment making for harrowing tales and tons of distrust between the state, the people and the ruling classes. To empower them even more with unchecked control and authority under the amendment reinforces Pakistan’s continuing predicament. The 18th Amendment bestows such exclusivity. People, in whose name such exploitation of power and resource occurs, remain unaware of the malice that unchecked political power yields. It is then left to competing powers in the system to object to such unilateral excess. The 18th Amendment is not as noble in practice as it sounds.

And though the matter of article 140A is before the courts that have taken notice of the discontinuity in the devolution process by absent local governments it must foremost bring to mind the very predatory nature of why and how was power arrogated for the provinces in the 18th Amendment. It makes for fascinating study in convenience and opportunism. What is devolved from the Centre is conveniently centralised at the province. It is illuminating to hear Punjab’s Health Minister suggest that what the Centre proposes to fight Covid remains confined in applicability to the limits of the federal territory. This when the entire country was crying hoarse for a more centralised, consensual and a coordinated strategy to fight corona. Murad Shah, CM Sindh, runs his own shop after all is agreed.

The shortcomings post-Amendment have shown themselves out in the inadequacy in provision of minimum services to the people during the ongoing health crisis. Enlightened legal minds will surely notice the absence of delivery by a political system least imbued with any sense of service or probity in political conduct even after being optimally empowered by the amendment. That weakens democracy not strengthen it. The 18th Amendment is a very fine principle but in very poor hands. That is the dilemma. Those who should make their rulers accountable for placing trust — political and financial — lack the intellectual wherewithal to question them. It thus remains a one-way heist.

With Covid came the need for ICU beds, ventilators and PPEs. That is when 18th Amendment stood shelved as an article of faith and provinces began looking at the Centre for support. The state of the health system despite billions in allocation stood shamed in its inadequacies, incompetence and mis-governance. With 57.5 per cent of revenue gone to the provinces they still dump the bills on the federal government for repayment with minimal budget. It calls into question the principal of fiscal independence. It may just be time to think anew this relationship between resource and responsibility.

The state, till the 18th, assumed a more central role in our national affairs. This followed from nearly forty years in power of the bureaucratic-military combine. Clearly they posit themselves as valid stakeholders like the three established pillars of the state and thus are sensitive to how the political class fairs. How right they are to do so is another matter but the yawning credibility gap between those who depend on the political leadership for their wellbeing — the state and the people — and those that rule in their name needs to be repaired foremost. That will take a stellar performance routinely from those in power in the provinces and the Centre but especially when challenges come in hordes. The Covid experience betrays, both, a lack of capacity and proclivity.

It may be time to take another look at the efficacy of the 18th Amendment or enable provisions to declare an Emergency in such times to empower the federal government to bring forth all its resources to deal with what is a national crisis. The Concurrent List was a good vehicle to avoid reverting to this option but was dumped under the amendment to hand over exclusive control of the resources to the provinces. We may need to resurrect it till we have a proven model of good governance and public service devolved down to the grassroots. The 18th Amendment may have assured continued availability of the resource without the responsibility that needed to be displayed in devolution.

Published in The Express Tribune, May 10th, 2020.

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