We are embroiled in a war against the global coronavirus pandemic for the last two months. The pandemic has exposed many of our national vulnerabilities. The mistakes we made in the initial years of our independence in the most important task of nation building have recurrently confronted us deepening the lingering distrust between the central authority and the small federating units given their bitter experience in the undemocratic bureaucratic-military regimes from 1947 to the dissolution of the One-Unit in 1969. I do not need to revisit the causes for the displeasure of the smaller provinces with the central regimes which I have extensively dealt with in my recent articles.
The Constitution of 1973, notwithstanding its flaring shortcomings, was a consensus document adopted by all the political parties represented in the National Assembly which came into being in the post-Jinnah Pakistan after the fall of Dhaka. The consensual sanctity of the constitution was violated by the ruling PPP by bulldozing a number of amendments in it in the face of serious protests from the opposition. Considering it an insignificant handful of pages, dictator Zia suspended it just after 4 years of its existence and disfigured it to secure his personal autocratic rule arrogating all the executive powers to himself through the infamous 8th Amendment to the peril of the elected Prime Minister. The article 58-(2-b) was excessively used by General Zia, President Ghulam Ishaq Khan and Sardar Farooq Leghari to dismiss elected Prime Ministers.
Mian Nawaz Sharif, in his second term, dispensed with article 58-(2b) and regained the executive powers. But General Pervaiz Musharraf, striking a deal with the MMA of Fazal Rehman and Hafiz Hussain Ahmed, regained the executive powers through the 17th Amendment. This amendment was undone by the 18th Amendment in April 2010 which not only returned the executive powers from the President to the Prime Minister, it also reviewed many clauses of the Constitution making addition or alterations in a number of articles to address the chronic issue of the provincial autonomy; to enhance the sanctity of the Constitution as the governing law of the land; to strengthen the superior courts; to create equilibrium between the federal government and the federating units in the distribution of administrative and legislative powers particularly in regard to the subjects under the Federal and Concurrent Lists and the disbursement of financial resources from the central pool; to decentralize powers from the Federal to the provincial capitals to the local governments; to restitute the public trust in the democratic process by making the opposition leader an equal stakeholder in the appointment of the Chief Election Commissioner and the constitution of the Election Commission and the formation of the Interim federal and provincial governments before general elections.
Let us cast a look at the important features of the amendment. The Amendment reviews the clause 6 of the Constitution (dealing with treason) to further strengthen it declaring abrogation, suspension, holding in abeyance of the Constitution by any person as a treasonous act. Now under clause 6 (2), any person or institution which assists in the above act, shall also be committing treason. The clause 6 (2-A) has been added to restrict the High Courts and the Supreme Court to validate any such act. This clause has effectively forestalled the swearing in of the Lord Justices under Provisional Constitutional Orders.
The 1973 Constitution had two lists for legislation: the Federal List – to be legislated upon by the Federal Government that included Defence, Currency, Railway, Communication, Trade and Commerce, Public Finance and Economic Affairs, Foreign Affairs, and the other was the Concurrent List that contained 47 subjects on which the Federal as well as the provincial governments could have legislated with the Federal legislation having superiority. This simply meant that if the federation had reservations on the legislation of a province on any of the above 47 subjects, it could have amended or annulled it while the provinces had no such power to undo any federal legislation on a subject from the Concurrent List despite their reservations.
The 18th Amendment abolished the Concurrent List and transferred almost all the 47 subjects to the provinces trimming the financial responsibilities or the unproductive spending of the Federal Government. Now, the provinces could legislate on these subjects and administer them accordingly. Mainly these include education, health, tourism, rural development, local bodies, Zakat and Usher etc. Since almost 15 subjects or Ministries were transferred from the Federation to the provinces, the share of the provinces from the central pool of resources was also accordingly reviewed. Almost 57 percent of the resources were allocated to the provinces under the 7th National Finance Commission Award. Unlike the past practice, it is now constitutionally mandatory for the next National Finance Commission Award to increase the share of the provinces. There, however, will be no reduction in their share of the finances allocated in the 7th NFC Award. This is where the Federal regime feels the financial crunch with its inability to reduce the number of its Ministries to the main 6-7 subjects and curtail its unproductive spending or Defence budget.
Under the 18th Amendment, the Council of Common Interests (CCI) has been reconstituted increasing its membership to 8: Prime Minister, the four Provincial Chief Ministers, and three other members nominated by the Federal Government. The Council has been bounded constitutionally to organize its Secretariat and take charge of the subjects allocated to it from the Concurrent List; convene once in every 90 days to consider the problems and disputes popping up between the federation and the provinces or amongst the provinces on any matter falling within its writ.
The most significant addition to the Constitution is the article 25 (A) which make it binding for the state to provide free education to all children between 5-16 years. The superior courts can take cognizance of the failure of the federal and the provincial governments to provide education to the children of the nation for which the state is now constitutionally bound. Also article 19 (A) was inserted in the Constitution recognizing the right of every citizen of Pakistan to have access to all the matters of public importance with the exception of those subjects expressly restricted or declared secret by the law.
The Amendment has constitutionally resolved the chronic issue of provincial autonomy giving the provinces all the powers to legislate on any subject within their domain and utilize judiciously their resources to ameliorate the socio-economic conditions of their people. The provinces grabbed all the powers of legislation on provincial subjects like education, health and local bodies but have failed to bring any worthwhile improvement in these departments. I can safely say so about my province of Sindh. Similarly, powers within the spirit of the 18th Amendment have not been devolved from the provincial capitals to the local governments at the Union Council level. The recent controversy over such powers and funds between the provincial administration and the Karachi Municipal Corporation was symptomatic of this malaise marring the process of decentralization.
However, the Federal regime is not concerned so much with these provincial subjects nor it has any reservation on the other features of the amendment. Where the federal regime feels handicapped or it feels impelled to review the amendment are the clauses dealing with the distribution of the resources under the National Finance Commissions. The Federal regime under the 18th Amendment should have reorganized the governing and bureaucratic structures in Islamabad to cut down its overhead expenditures. The federal regime is maintaining more than 30 Ministries and an army of Special Assistants, though it has been effectively left with only 6-7 subjects. Similarly, the redistribution of financial resources makes it necessary to review the defence budget of the country or reach national consensus to respect the defence needs of the country. This groundwork was not done. The sudden noise for the review of the amendment has provoked an intense reaction from Sindh and Balochistan. No political leader in his sanity in Sindh will support any review of the amendment.
One could not fathom as to why Prime Minister Imran Khan felt it necessary to raise this contentious issue at this critical juncture when the federal and the provincial government of Sindh were already engaged in war to undermine each other. The unnecessary tussle with the Government of Sindh on lockdown followed by the new blunder of the federal regime about the 18th amendment has given a new lease of life to the dwindling PPP in Sindh. Thank you Prime Minister Imran Khan.
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