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Home Digital Magazine 18th Constitutional Amendment: Divine document?
18th Constitutional Amendment: Divine document?
May 10, 2019
Amir Zia |
All of a sudden, the 18th Constitutional Amendment has become one of the most emotive and hotly debated topics in Pakistani politics. The Pakistan Peoples’ Party’s (PPP) top leaders certainly deserve the credit for bringing this controversial amendment back on the center-stage with their repeated allegations that efforts are underway to scrap it from the constitution and deprive provinces of their hard-won autonomy in administrative, political and financial matters.
But do these allegations made by PPP’s top-guns, including its Chairman Bilawal Bhutto Zardari and Co-chairman Asif Ali Zardari, carry any substance? Is there any serious move afoot to undo the 18th Amendment or make any sweeping changes in it? The answer to these questions is in negative. The besieged Pakistan Tehreek-e-Insaaf (PTI) government does not enjoy the support of two-third members in the Parliament, to get rid of this amendment or make any one-sided changes in the constitution.
Why are Zardari senior and Zardari junior giving centrality to this issue in every speech, press conference and media talk? Why are they houting “wolf, wolf” when none is baying for blood?
To amend the constitution, the PTI will have to perform a high-wire act and negotiate a complex deal with the opposition parties and its allies Given the multiple challenges, especially on the economic and foreign relations fronts, the issue hardly figures out as the top or even secondary item on its agenda. Background interviews with a couple of senior ministers in Prime Minister Imran Khan’s cabinet reveal that doing away with the 18th Amendment is not under any formal discussion within the government circles; though a couple of the party leaders do openly criticize this piece of legislation — passed on April 8, 2010, during the last government of the PPP.
At that time, all the major political parties, including the Pakistan Muslim League Nawaz (PML-N) supported this amendment, and it was passed with 292 votes in the National Assembly out of 342. Then why are Zardari senior and Zardari junior giving centrality to this issue in every speech, press conference and media talk? Why are they shouting “wolf, wolf” when none is baying for blood? The answer is obvious; as the accountability dragnet begins to close in, Zardari senior, his sister Faryal Talpur, and other close aides are trying to deflect pressure.
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Read more: How has 18th amendment impacted the Federation in Pakistan?
They are raising those issues which may whip up sentiment in some constituencies and trying to build a narrative that they are being targeted for standing up for the 18th Amendment, opposing the alleged plan of enforcing the presidential system and resisting the military courts seen vital to administer justice to hardcore terrorists. While Zardari senior is using Zardari junior as a shield to wiggle-out of the corruption cases, the PPP’s narrative building has triggered discourse in the public domain about merits and demerits of the 18th Amendment.
This public discourse on constitutional matters is indeed a good omen for the country, where some powerful interest groups are trying to portray the 18th Amendment as something sacred that cannot be revisited, revised or renegotiated. Like any other piece of legislation, this Amendment too, should remain open for scrutiny by stakeholders and public at large for improvement and change as and when required. Definitely, for many experts, politicians and economists, the 18th Amendment which brought more than 100 drastic changes to Zulfikar Ali Bhutto’s 1973 Constitution – has tarnished the original document so much that it should now be called “Zardari’s Constitution.”
The 18th Amendment allowed anindividual to hold the coveted slot of a prime minister more than two times. This change was personalityspecific and aimed to benefit Nawaz Sharif so that he could become prime minister a third time.
Even this entire amendment was enacted without a proper analysis of its political and economic impact on the federation and federating units. Not just the lawmakers, but also the state institutions failed to grasp its overall negative implications for Pakistan. However, even the staunchest critics of the 18th Amendment do not want to do away with it altogether. What the critical voices, including many leading economists and experts, demand is to revise the amendment in a rational manner and remove its weakness and flaws, including those pertaining to financial matters, education, health and unchecked powers of the executive, especially the prime minister, that created an inbuilt crisis-like situation for the federation.
The amendment took away the right of President of Pakistan to dissolve the Parliament by removing article 58-2(b) from the constitution and changed the very basics of the governance structures. The political parties hailed this change, but they failed to grasp the fact that their labor of love did not provide any alternative mechanism to check the powers of the executive within the Parliament. It was unable to develop any viable internal system of accountability of prime ministers, who may turn into a mini-dictators. Lawmakers belonging to the ruling party cannot differ or challenge him/her on any issue; for fear of losing their seat in Parliament, under the anti-defection law, nor any subordinate investigation or law enforcing agency could hold the premier accountable.
Read more: IS PTI going to repeal 18th Amendment?
That’s why former premier Nawaz Sharif could only be forced out of power after prolonged agitation and sit-in by the opposition and extraordinary judicial involvement, which is not possible as a matter of routine. Furthermore, while Nawaz Sharif was firmly in the saddle, none of the investigation agencies and anti-graft bodies from the National Accountability Bureau (NAB) to the Federal Investigation Agency (FIA) could move against him because they were overtly or covertly under the executive’s thumb. To avoid a repeat of such a situation which had put the country in the vortex of protests and uncertainty the Parliament needs to find a method to hold the prime minister accountable in a way so that the system doesn’t get derailed if he/she is found involved in corruption, misuse of power or poor governance.
Secondly, the amendment clipped the wings of the President further by barring him/her from imposing emergency rule in any province or from dissolving Parliament without prime minister’s concurrence. This creates a dichotomy as no constitutional way remains open to tackle a political turmoil created by an elected government or calling for action against any provincial or the national assembly. Thirdly, the 18th Amendment allowed an individual to hold the coveted slot of a prime minister more than two times. This change was personality-specific and aimed to benefit Nawaz Sharif, so that he could become prime minister a third time – which he did in 2013.
The so-called secular parties amended the constitution to make only Muslim members
of the National Assembly eligible as candidates for the slot of the prime minister, reinforcing the perception that membersbelonging to the religious minorities are treated as the second class citizens.
It was a highly controversial change because it promoted personality-cult both within the Parliament and the political parties, consolidating dynastic politics instead of democratic values. The PML-N, considered a centrist party, agreed to massive changes in the Constitution only because Zardari senior gave them this Sharif-specific concession. A senior PML-N leader, who spoke to the scribe on the condition of anonymity, admitted that it was a huge mistake committed by the party. On a positive note, the amendment barred courts from validating extra-constitutional measures such as the suspension of the constitution, but it again failed to suggest a constitutional way out of a crisis or an impasse.
Read more: 18th amendment and charter of democracy
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The 18th Amendment also included several fundamental rights to the Constitution such as Article 10-A on the right to a fair trial, 19-A on the right to information, and 25-A on the child’s right to education. These are non-controversial additions and been generally acclaimed by all. Similarly, amendments regarding judicial appointments, the establishment of Islamabad High Court and renaming of North Western Frontier Province as Khyber-Pakhtunkhwa also have been well received. The architects of the 18th Amendment, however, did not address the qualification and disqualification criteria in articles 62 and 63 of the constitution for the members of the Parliament.
These vague articles were inserted by former military ruler President Gen. Muhammed Zia-ul Haq to infuse an ‘Islamic’ spirit among parliamentarians and remain subject to conflicting interpretations. Instead of improving these articles, the 18th Amendment discriminated against religious minorities; who under constitutional changes are now barred from holding the offices of the prime minister, chief justice and election commissioner. The so-called secular parties amended the constitution to make only Muslim members of the National Assembly eligible as candidates for the slot of the prime minister, reinforcing the perception that members belonging to the religious minorities are treated as the second class citizens.
However, this change remains against the spirit of the Constitution, which treats all as equal citizens regardless of their faith, ethnicity, sect or colour. Furthermore, despite more than 100 changes in the Constitution, the 18th Amendment failed to undo the contentious Hudood and blasphemy laws. But the biggest abnormality has been created on the economic front in the name of provincial autonomy. The provinces get 57.5 percent of the total taxes collected under the divisible pool, while the federal government gets 42.5 percent.
Read more: 18th Amendment not a religious document
Moreover, under the 18th Amendment, the share of the provinces, can be increased but not decreased from the share fixed in the 7th National Finance Commission Award. To compound further, this ill-thought out move, all the big ticket expenditure items including debt servicing, defense, footing the bill of the loss-making public sector enterprises, subsidies and allocations for emergency challenges were kept with the federal government, but the bulk of resources were given to the provinces.
The amendment clipped the wings of the President further by barring him/her from imposing emergency rule in any province or from dissolving Parliament without prime minister’s concurrence.
It weaved a tangled web as the federal government was allowed to collect tax on goods and all incomes barring agriculture, while provincial governments collected tax on services, which created problems for the big service sector companies operating across Pakistan as they have now to deal with multiple agencies. The hopes that provinces will raise taxes on their own also did not materialize because flushed with money from the federal government, provincial governments made no serious effort to broaden the tax base. Provinces also remain reluctant to tax the powerful interest groups, including the agricultural sector.
Ironically, many ministries and government functions were devolved, but provinces got no say in taxation planning. As the size of the cake remains small (federal government collected revenues worth Rs.3.7 trillion in fiscal 2017-18, which the IMF wants to increase up to Rs.4.7 in the first phase), there is a need not only to broaden it but fix the anomalies that the 18th Amendment infused in the system. The thrust of efforts should be for federal rather than centralized planning as resource mobilization has increasingly become difficult against the backdrop of the country’s economic slowdown.
Read more: 18th Amendment: Zardari & Bilawal exploiting provincial fears?
While the backers of the 18th Amendment maintain a strong position on the devolution of power and autonomy, all the major political parties, including the PPP and the PMLN-N remain averse to empowering the local bodies in line with the 140-A of the Constitution. On this issue, the provincial governments consistently played a negative role and resisted granting provincial finance commissions. Even the local bodies elections – for example in Sindh and Punjab – could only be held after the intervention of the superior judiciary, but the provincial governments ensured to make them as toothless and powerless through a string of changes in its laws.
Another big problem which the 18th Amendment created is in the energy sector. The bone of contention remains that while the right of the provinces has been recognized on natural resources, the federal government remains in charge of the distribution network, which is accumulating losses worth billions of rupees every day because of rampant theft and non-payment of electricity and natural gas bills by consumers. Provincial governments are likely to go bust if this burden is transferred to them; meaning running the energy sector distribution companies.
The issues emanating because of the abolishment of the concurrent list also need to be revisited to bring harmony between federating units and the center. Other matters requiring urgent attention is the education sector, which has been devolved at the provincial level. But this was done without proper planning or thinking. The foremost issue here remains that education, instead of uniting the people and playing its role in nation-building, has become a divisive in nature thanks to various curriculums and parallel schooling systems.
The thrust of efforts should be for federal rather than centralized planning as resource mobilization has increasingly become difficult against the backdrop of the country’s economic slowdown.
On this front, the federal government should have powers to develop and introduce similar syllabus and method of education across the country with input from the provincial education ministries up to the primary and secondary level. The provinces must devolve powers to run and manage schools to the local governments instead of concentrating at the provincial education ministry. The issue of the capacity of the provinces in terms of teachers training also needs to be revisited to ensure an equal standard of education in all provinces and develop similar marking criteria.
The existence of the Higher Education Commission (HEC) has also been questioned after the 18th Amendment, but it was saved by the Supreme Court, which allowed it to continue performing functions under HEC Ordinance 2002 in a landmark ruling in April 2011. The federal government must also intervene to regulate, monitoring and standardize the quality of education and examination at the college and university level to bring uniformity in the system. The 18th Amendment also hurt the health sector as it did not put in place a centralized checking authority for health services and the regulation of drugs.
Read more: Is SC going to review the 18th amendment?
The decision to decentralize these core monitoring and regulation functions run contrary to the world trend in which the regulatory framework is being centralized and standardized. Overall the 18th Amendment has created massive governance and financial complications by the haphazard distribution of resources, weakening the center, removing the federal supervision and monitoring on important public service sectors and weakened the much-needed checks and the process of accountability.
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To ensure pro-people reforms and better working between provinces and the center it is necessary to revisit the 18th Amendment in its entirety and do away with those changes which have choked and weakened the federal government and prevented devolution of power to the local bodies level. Pakistan is too valuable to be held hostage to the petty interests of a handful of self-serving politicians
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