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Wednesday, February 14, 2024

Revisiting the 18th Amendment of Pakistan

In the constitutional history of Pakistan 18th amendment is considered as one of the landmark amendments. It has impacted the state variously in various aspects. Politically, it has integrated the state and strengthened the federation. Economically, the amendment pushes the country toward a never-ending crisis. From a societal perspective, it increases inequality and social divisions.

18th amendment in the constitution of Pakistan 1973 strengthens the federation but weakens the economy and society. Thus, revisiting the amendment can bring the country out of the crisis. Although every amendment in a constitution has great significance, some of these own very special places in a state and society due to their long-lasting influence. In the American constitution, the first 10 amendments commonly known as the Bill of Rights 1991, the 13th amendment banning slavery, the 14th amendment guarantees equal protection of the law, and the 19th amendment provides women the right to vote to possess special respect. This is because these amendments had changed the course of American society which was history.

Similarly, in the constitutional history of Pakistan 18th amendment is considered as one of the landmark amendments. It has impacted the state variously in various aspects. Politically, it has integrated the state and strengthened the federation. Economically, the amendment pushes the country toward a never-ending crisis. From a societal perspective, it increases inequality and social divisions. And from an environmental aspect, 18th amendment shrinks the state capacity to take firm actions against climate change.

Read more: Farogh Naseem demands changes in 18th amendment

Impacts of the 18th amendment

As for as the impacts of the 18th amendment on politics in Pakistan is concerned, it has integrated the federating units and strengthened the federation. The main reason for these good impacts is that the amendment assures provincial autonomy in a complete sense. The concurrent legislative list is repealed and there is only one legislative list in the 4th schedule of the constitution, the federal legislative list with 59 subjects of federal nature. All the remaining subjects except criminal law, criminal procedure and evidence (article142) are transferred to the provincial legislature with residuary powers to them.

In criminal law, criminal procedure and evidence, both the legislative assemblies (federal and provincial) have jurisdiction over the legislation. In case of contradiction, federal legislation will prevail according to article 143 of the constitution. All the 47 subjects of the Concurrent legislative list are divided and 17 ministerial authorities are devolved to provinces and 7 subjects are brought under the Council of Common Interest, a body comprised of representatives from federation and provinces. The seven subjects under the Council include matters relating to water, construction of hydro-power projects and exploitation of oil and gas.

In addition to provincial autonomy, Article 112(2)(b) is omitted which gave powers to the governor of a province to dissolve the provincial assembly without the approval or will of the provincial government. In this way, the 18th amendment addresses grievances of the smaller provinces and an environment of integration could be possible after ten years of Musharraf’s dictatorial rule.

At the end of his period, grievances in Balochistan and erstwhile FATA were as severe as separatist movements were getting rapid popularity and the national anthem was rarely sung in those areas. But 18th amendment provided a sigh of relief and campaigns like ‘agaz-e-HaqooqBalochistan’ along with provincial autonomy reduced the flames of grievances. Similarly, transferring from a presidential to a parliamentary form of government also strengthened the federation. Hence, the 18th amendment has proved to be a successful experience for national integration and a strong federation.

Read more: People are against the 18th amendment, Mustafa Kamal

Meanwhile, the amendment brought some structural problems in the financial matters of the state. Some analysts are of the opinion that the 18th amendment aggravated the economic problems of the country. The controversy begins with the inclusion of clause ‘3A’ in article 160 of the constitution. Article 160 describes the formation and functions of the National Finance Commission. Clause 3A curtails the powers of the finance committee that it cannot reduce the share of a province in the National Finance Commission Award than its previous share.

At present, the 7th Finance Commission Award is being implemented which was signed in 2009 and given legal cover on July 1, 2010. According to the award, the federal government receives 42.5 percent and provincial governments get 57.5 percent of revenues from the federal consolidated fund. It means the federal government has only 42.5 percent of total revenues from which it has to pay internal and external debts, the interest on debts, expenditures on defense, higher education and technology, government expenditures along with pensions and salaries of the federal government employees.

According to the budget 2021-2022, total revenues of FBR are targeted at Rs.5800 billion out of which 42.5 percent will be received by the federal government. Total federal government expenditures according to the budget 2021-2022 are Rs.7523. Out of total federal government current expenditures of Rs.7523 billion, the government had to pay Rs.3059 billion for mark-up on total debts. It means 40.6 percent of total federal expenditures is spent on interest payments. In the remaining 59.4 percent, Rs.1370 billion are allocated for defense which cannot be reduced owing to the geo-political situation of Pakistan. It counts for 18.2 percent of total federal spending. Rs.900 billion are allocated for PSDP which accounts for 12 percent. Similarly, state-owned enterprises make losses which to be paid by the federal government.

In budget 2021, 10 percent of the budget expenditures were spent on loss-making enterprises. Then, there are many other smaller but heavy on-budget expenditures. The federal government cannot have sufficient fiscal space to meet the expenditures and it has to take loans from internal and external resources. Here comes the role of the International Monetary Fund (IMF) and a new process of economic dependency begins. If Pakistan has to get economic independence, it has to manage its expenditures from within the country through efficient tax collection.

But the federal government cannot meet all of its expenditures from only 42.5 percent of total revenues. The percentage of share distribution will have to be revised. Article 160 (3A) does not allow the reduction of provincial share. In this manner, 18th amendment has become a burden on fiscal management of the country.

Read more: Revisiting the 18th Amendment: Pakistan needs a Stronger Federation

After economic issues related to the 18th amendment come environmental problems and the state’s inability to coop with climatic disasters every year. Here is also a structural problem with governance. In the 18th amendment, subject relating to climate change was transferred to provinces. On the other hand, National Disaster Management Authority (NDMA) is under the federal government. In fact, climate change is a subject of the national level that requires national policy to reduce the effects of changing climate. According to the reports, 354 people have died due to monsoon rains this year in Sindh and Balochistan. Similarly, the quantity of water coming from the Himalayan Mountains has decreased to the lowest level in history.

On one side, water scarcity, on the other side, abundant and unseasoned rains may take thousands of lives, destroy infrastructure including homes of the poor class and damage the agriculture sector. What is the state’s response? Blames and blames. The provincial government accuses the federal government and the federal government questions the provincial ability. This is due to the 18th amendment. If the subject of climate change would be under the federal government, governance would be easy and efficient.

Like environment protection, subjects of health and education are devolved to provinces under the 18th amendment. This is also problematic. Both of these subjects demand policies and implementation of a universal level for all the citizens of a state. Let us analyze them one by one. Recently Covid-19 hit the country. All the provinces followed different policy options in the beginning because health was under provincial authority. Then World Health Organization raised a question with which government it had to communicate for counter Covid-19 strategy. After a large fiasco military institutions had to intervene and there established NCOC under a federal government that coordinated with internal as well as external bodies for counter disease measures.

Similar is the case with Polio disease

There are only two countries with Polio, Pakistan and Afghanistan. If NCOC under the federal government could control and perform effectively against a pandemic why could it not be efficient for governance in all over the health sector? Additionally, if the health sector is a provincial subject it is undermining the basic right of equality of all citizens. In KPK and Punjab, people are getting health insurance through Health Card in SehatShulatPrograme but people in Sindh and Balochistan are deprived of this kind of government facility. If health would be a federal subject, all the citizens would be getting equal treatment.

The case of education is also similar to health. Education till elementary class is under the provincial government and higher education is under the federal government. Again, enjoyment of equal rights is being violated through this scheme. In some provinces, basic education is better than in others. Children from backward areas are at a disadvantage due to this scheme. Similarly, children coming with better quality of education are also at a disadvantage when the quota system is introduced for government jobs and scholarships. This is a pinching problem in competitive examinations for the aspirants coming from Punjab. They could not get allocation despite having higher merit than their competitors from Sindh, KPK and Balochistan.

Read more: Maulana Fazal calls on Zardari: Will 18th amendment amended?

No word is last word, no scheme is a perfect scheme. Similarly, 18th amendment has a lot of advantages but also has some disadvantages. It revived the federal structure of the constitution and reunited the country politically. On the other hand, it has also caused a permanent economic obstacle for the country, inhibit its capacity against climate change and created inequality for social services. Revisiting 18th amendment is not a sin. Thus, political elite should show some maturity for better functioning of the state.



The writer has  LLB (Hons) from Punjab University Law College. The views expressed in this article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.