PTI’s annual 18th Amendment debate

This criticism is a broader critique of the NFC award that is repurposed every year for different issues

Hassan Niazi May 12, 2020

Whenever the PTI faces criticism for its response to national issues, its rank and file appears on television to deliver a stump speech blaming the 18th Amendment. Sometimes, they even start contemplating more drastic changes to our constitutional system, such as the last year’s debate on whether Pakistan should adopt a presidential model of government. This spell of daydreaming is interrupted by reality reminding members of the PTI that they do not have the numbers to amend the Constitution.

The PTI’s frustration with the 18th Amendment comes from its victory in 2018 being less than ideal. Winning the National Assembly by a minuscule margin forced it to contemplate working with the opposition. And the inability to win Sindh meant that the PPP could trace its own path independent of the federal government.

Sindh’s autonomy during Covid-19 has frustrated the federal government. The province moved ahead with its lockdown strategy while the federal government sat on the fence. The creation of this autonomy remains the biggest accomplishment of the 18th Amendment. Fulfilling the promise of federalism given in the 1973 Constitution. Power is no longer centralised but dispersed.

Provincial autonomy was something that the PTI celebrated after the 2013 elections when it won Khyber Pakhtunkhwa (K-P) but not the federal government. Now when the tables have turned, they appear to hate it, shocked at the fact that the Constitution puts curbs on their power.

But that’s how a federation works. The Centre can’t rule over the provinces like colonies — an issue that was partly to blame for the split of Bangladesh in 1971.

Over the past weeks I have read articles by commentators who criticise the 18th Amendment for being the result of political opportunism. These articles are usually grounded in a general disdain for politicians. However, this argument can be addressed by looking at just a sliver of what the 18th Amendment achieved.

First, no one seems to talk about how it integrated new fundamental rights into the Constitution. This included the right to fair trial, the right to information, and the right to education. It also mandated the creation of a stronger local government system through Article 140A and took the ‘doctrine of necessity’ off the judiciary’s table. Judicial independence was strengthened, while the president’s power to meddle with parliament was eliminated. Provinces were given ownership over their resources and a stronger mechanism for national unity was developed by empowering the Council of Common Interest (CCI).

It is hard to see how any of these additions benefitted politicians. The giving away of power from the Centre to provinces didn’t benefit the PPP (the ruling party at the time), nor did the elimination of the powers of the president. In fact, even provincial power was further devolved to local governments.

The idea of the 18th Amendment was to create greater checks on central power — a problem Pakistan has grappled with since its creation. It is intellectual laziness to paint the 18th Amendment as some form of political opportunism.

The PTI’s favourite critique of the 18th Amendment is that its protection of the 7th NFC award has made it difficult for the federal government to adequately respond to the Covid-19 crisis.

This criticism is a broader critique of the NFC award that is repurposed every year for different issues. For example, since 2018 we have been told that the NFC doesn’t allow the federal government to raise adequate funds for national defence. This year, it is about Covid-19.

Although the data belies the claims that the federal government does not have adequate funds for national defence (as I wrote in my column on this issue in 2018), the fact is that this is not an 18th Amendment issue, this is about the federal government’s failure to raise revenue.

The federal government has various avenues to raise revenue even after the 18th Amendment. For example: sales tax on goods, excise, income tax, and customs duties. Yet, it has been unable to improve its tax collection mechanisms. This has impacted its revenue. The provinces, however, have substantially improved their tax collection after the 7th NFC award. Given this, the Centre can hardly blame the 18th Amendment for its inability to adequately raise funds.

Consider also, since we are living through a health crisis, a recent Op-Ed by Dr Pervez Tahir. He points out that the 18th Amendment has helped considerably in raising health spending by the provinces. He argues that in the year before the 7th NFC, health spending was at 0.5% of GDP. It grew consistently afterwards as provinces spent more on health.

Contradicting the PTI’s narrative, Covid-19 has shown the merits of the 18th Amendment. In 2018, I wrote that federalism could lead to provinces becoming “laboratories of experimentation”. As Justice Brandeis of the Supreme Court of the United States said: “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.” This is exactly what the Sindh government was able to do through its lockdown strategy. Its success made the federal government realise that it must do the same.

Sindh’s independence has also led to the PTI stating that the 18th Amendment creates a lack of national unity. This is simply untrue. The amendment greatly improved the institution of the CCI, a body established to resolve national issues while respecting provincial autonomy. However, the PTI continues to completely ignore the CCI because it refuses to engage with the Sindh government.

The only legitimate criticism of the 18th amendment seems to be that it has never been implemented to its full potential. This is true. But if the problem is lack of implementation, then surely the way forward is to sit down and implement the 18th Amendment. Not to repeal it.

Critics of the 18th Amendment should understand that the PTI did not win the Sindh government. As per our Constitution, that means the province has autonomy no matter how much this may frustrate the Centre. To tear down the 18th Amendment on this basis is ludicrous. It would put individual rule on a higher pedestal than institutional development.

If the PTI wants to unite the nation, perhaps it should learn from how the 18th Amendment was made: a broad multi-party consensus rather than unilateral will.

Published in The Express Tribune, May 12th, 2020.

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