critical analysis 18th amendment pakistan

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Critical Analysis of 18th amendment of Pakistan

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Dr. Shahzad Ali Gill

Shabir Hyder

Bashir Baltistani

The 18th Constitutional Amendment was unanimously passed by the Parliament and notified in the Gazette of Pakistan on 20th April, 2010. This amendment introduced changes to about 36 percent of the 1973 Constitution of Pakistan: 102 out of 280 Articles of the Constitution were amended, inserted, added, substituted or deleted. The 18th Constitutional Amendment has redefined the structural contours of the state through a paradigm shift from a heavily centralized to a predominantly decentralized federation. Literature suggests that federalism was originally devised and continues to be viewed as an institutional mechanism for dividing power and sovereignty between national and regional levels of governments in order to reduce the likelihood of an authoritarian or overly centralized government. In this context, the 1 new constitutional framework of Pakistan has reinforced a multilevel governance system by extending greater autonomy to the federating units (provinces) and laying down fundamentals of substantive decentralization at the lower tiers of the local governance. Pakistan's Constitution delineates the extent of executive authorities of federal and provincial governments through Article 90 and 137 respectively. The executive authority of the federation extends to matters with respect to which the Parliament holds the power to make laws, including the exercise of rights, authority and jurisdiction in and outside Pakistan, while the executive authority of the province extends to matters with respect to which the Provincial Assembly has the power to make laws. Principally, the executive authority has been conditioned with the legislative authority at the federal and provincial levels. The 18th amendment has re-demarcated the jurisdictions of Pakistan's multi-level governance at the federal, inter-provincial and provincial levels by revising the Federal Legislative List Part I and Part II and abolishing the erstwhile Concurrent Legislative List. Subsequently, the legislative and executive authorities of the federal and provincial governments have been delimited by assigning the exclusivity o f 53 subjects to the federal government, 18 subjects to the Council of Common Interests (CCI) and all residual subjects to the provincial governments. Further redistribution of functions at the district, tehsil and union council levels has been vested with the provincial governments in accordance with the policy framework enunciated in Article 140 (A) of the Constitution. Pakistan's architecture of multi-level governance necessitates developing corresponding framework(s) of diverse, shared and decentralized public policy-responding to the jurisdictions of the respective tiers of governance. In literature, multi-level governance (MLG) refers to the explicit or implicit sharing of policy-making authority, responsibility, development and implementation at different administrative and territorial levels including, across different ministries and/or public agencies at the central government level, between different layers of government at the local, regional, provincial/state, national and supranational levels and, across different actors at sub national/provincial levels.2 This article will attempt to revisit the first five years of the passage of the 18th Constitutional Amendment with a focus on understanding the imperatives of an evolving federal structure on public policy and multi-level governance in Pakistan. It will do so by first, looking at functional redistribution spearheaded by the Implementation Commission (IC); second, analyzing the areas of convergence and contest at intergovernmental level; third analyzing the level of preparedness of provinces to optimize policy spaces

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Federalism - 18th Amendment Report

July 17, 2013.

The report highlights the challenges, implementation gaps, and opportunities regarding the implementation of the 18th Constitutional Amendment in Pakistan. The report has two major sections: i) The basis of a new vision of Federalism and ii) Provincial Progress and Perspectives. The former does a macro-level analysis of the implementation of the Amendment with a focus on the role of the Federal government and inter-governmental challenges experienced by the Federation. The latter presents the message from the provinces regarding the progress on implementation of reforms, challenges of local governance and service delivery, and role of civil society.

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18th Amendment: Implications for Provincial Autonomy and Governance

July 1, 2016

Talks & Interviews

Zafarullah Khan

Mr. Zafarullah Khan, Executive Director, Centre for Civic Education was invited by CPPG to deliver a talk on 18th Amendment: Implications for Provincial Autonomy and Governance on April 14, 2014, and share his experiences of deep involvement in the discussions regarding the 18th Amendment to the constitution of Pakistan.

Khan began by stating that an analysis of the 18th Amendment required exploring the issue of ‘provincial autonomy’ which had defined the politics of the region. The 1947 Partition happened in part because autonomy was denied to the provinces, and all fourteen points in the Pakistan Resolution reflected the aspiration for provincial autonomy. Similarly, the six points of Sheikh Mujib-ur- Rehman and the unfortunate events of 1971 were again about the denial of provincial autonomy.

The political history of Pakistan had been characterized by two competing tendencies of centralization and decentralization. For instance, seven out of the twenty two point consensus articulated by the ulema of various schools of thought in 1951 related to the centralization of state by denying ethnicity, propagating a presidential system and unitary form of government with provinces as administrative units. These points were tried in the Ayub Khan government, while General Zia even excluded the possible role of political parties in the governance architecture by taking a cue from the Ansari Commission Report. On the other hand, the political class had always demanded greater provincial autonomy whether it was the 21 points of the Jugtoo Front, the MRD Declaration or the Charter of Democracy (CoD). He further clarified the difference between ‘decentralization’ and ‘devolution’, stating that while decentralization meant the centre assigning certain powers and jurisdictions to constituent units, devolution was a constitutionally delineated allocation of powers to various players of the government.

Discussing the constitution, he stated that there was a lack of protection of rights, and a general disbelief in the Constitution of Pakistan as 52% of our national existence had passed without a constitution or one diluted by PCOs etc. A country’s constitution could be placed under three categories: a legal document, a collection of traditions or a political document. The overall constitutionalism in the Sub-continent leaned towards a legal document and could be called the “lawyer’s constitution”, which was also the case in Pakistan where lawyers were the prevailing professionals who drafted the document from the first version to the last one in 2010, when the 18th Amendment was passed. Thus, critics had argued that Pakistan’s constitution gave legal solutions to political issues leading successive governments to interpret it in their own way: rulers have circumvented it, military regimes have made it convenient, religious parties indicate its lack of adherence to Sharia, and secular groups find it too Islamic. However, the consensus constitution and the way it was manipulated had hardly been a topic of debate in Pakistan, even though sanctity of the constitution was such that even a misspelling required a 2/3 majority to rectify it.

“A country’s constitution could be placed under three categories: a legal document, a collection of traditions or a political document.”

Khan then specifically concentrated on the process by which the 18th Amendment had come about. Since 1947, Pakistan had been involved in either active or dormant conflicts leading to disequilibrium in civil-military relations and a divided polity along ethnic, religious and sectarian lines. However, the 38-point Charter of Democracy (CoD), signed on May 14, 2006 between two parties with a history of political confrontation was a unique document because of its public pledge to support democracy. After the 2008 elections, while no party could muster simple majority in the Parliament, the consensus on the CoD stayed intact. The Nine points of the CoD required a constitutional amendment but only half could be achieved through the 18th, 19th and 20th Amendments. The promised creation of Federal Constitutional Courts, non appointment of PCO judges, and merging FATA with NWFP did not materialize while all indemnities and savings introduced by the military regimes in the constitution were reviewed, however only few were removed. Similarly, the five points requiring new institutions such as the Truth and Reconciliation Commission, a Commission on Kargil, a National Democracy Commission for Civic Education, and a commission to review the legitimacy of land allotments to the military were not pursued. While, six of eleven points which required laws, and 6.5 of 10 points requiring executive actions and policy reforms were achieved. Issues left out were reforms on pro-poor policy, citizen-centric governance and a code of conduct.

“…38-point Charter of Democracy (CoD), signed on May 14, 2006 between two parties with a history of political confrontation was a unique document because of its public pledge to support democracy.”

It is pertinent to note that during the PPP led coalition government; three tools were put in place that boosted provincial autonomy. First, the political class came up with the 7th National Finance Commission (NFC) Award, which not only increased the provincial share, but also introduced for the first time, a multi-sectoral formula for resource distribution, and further gave premiums to certain provinces. For example, inverse population density was included among the criteria; Khyber Pakhtunkhwa received a 1% premium for conflict losses while Baluchistan got a bigger share as part of “Aghaaz-e-Huqooq”. Second, a Parliamentary Committee on National Security was formed, and finally, a Parliamentary Committee on Constitutional Reforms was set up in light of the Charter of Democracy.

Khan argued that the deliberative process for the 18th Constitutional Amendment was as intense as the formulation of the 1973 Constitution. For the 18th Amendment, initially a consensus was achieved on reviewing the entire constitution. Further, the government reviewed around 981 policy papers, recommendations and suggestions, and around ninety one private member bills were considered as suggestions. The committee met for nine months over seventy seven meetings, and there were around twenty six opposition dominated functional members.

In comparison, the 1973 constitutional committee had twenty five members led by Mahmud Ali Kasuri and Abdul Hafiz Pirzada, which met forty eight times to draft the constitution with eight notes of dissent. This initially resulted in constitutional accords, which acted as a blue print for the future constitution. However for the 18th Amendment, the Charter came before the process. Additionally, the 1973 committee had three women as members as opposed to no women or minority representation in the 18th Amendment committee.

The Committee’s outcome included the amendment itself which introduced more than 100 articles changing 34% of the constitution, additional constitutional reforms, deletion of two schedules including presidential protection, and eleven recommendations for the executive including FATA and civil services reforms. For the 18th Amendment, an Implementation Commission (IC) was constituted which concerned itself with responsibilities that needed to be transferred to the provinces after the abolition of the concurrent list. The IC was constitutionally time bound and met its constitutional deadline on 30 June 2011, following which the nation celebrated provincial autonomy.

Khan referred to the 18th Amendment as the “New Constitutional Software of Pakistan”, which led to amendments in half of the 34 articles related to provincial autonomy. In essence, it had re-written the federalprovincial pact and was different from other legislative, administrative and fiscal reforms in the sense that it had originated from within unlike most donor pushed reforms. The 18th Amendment had also introduced the unique concept of “institutionalized powers” by giving parliament the authority instead of the President or Prime Minister to determine the number of ministers; to ensure that the Council of Common Interests and National Economic Council offer annual reports; to review candidates for the appointment of judges, and to determine NFC’s share in terms of percentage. Further, the Election Commission could not exist in its absence, and aspects like caretaker governments, referenda or new commissions such as the National Commission on the Status of Women (NCSW) and National Commission for Human Rights (NCHR) must also follow due process with the parliament

The 18th Amendment had empowered the provinces, giving them a constitutional voice, whereby the federal government could not impose emergency without the consent of the provincial government. Further, Article 140-A was introduced setting minimum standards for the establishment of local government bodies by the provinces, and fundamental rights such as the right to fair trial, right to education and right to information were expanded.

“…the amendment introduced more than 100 articles changing 34% of the constitution,”

In conclusion, Khan discussed the federal-provincial relations in the context of social services provision and indicated two models in vogue. The “welfare model” where services were funded by taxpayers, and the “liberal model”, where consumers paid fees for services. Though major social, economic and cultural rights were part of the “principles of policy”, the constitutional design fault line or ‘catch’ was that the provision of these rights was subject to the availability of resources. The policy domain in this regard was either allocated or defined in the constitution or was joined-up through concurrent mechanisms. However in Pakistan, governance, revenues, institutions, ideology and policy all came from Islamabad, and the social sector had been an ignored priority because we had followed a “federally planned and provincially executed” system of development. This had led to donor dependency, and underutilization of development budget as a Planning Commission report had revealed up to 80% underutilization every year resulting in disappointing social indicators and low levels of human development. For instance, devolution of education was contested by few political parties even though Article 147 had provisions whereby a province could ask the Centre to carry out certain jobs on its behalf & vice versa. Further, even though the 18th Amendment made the right to education a fundamental right, only the federal capital and Sindh had passed this legislation. While, Sindh and Punjab had created Provincial Higher Education Commissions, only Punjab had established its own curriculum authority.

Khan articulated the need to understand that this was a transitional phase of devolution, and supporting institutions had been set up including a Special Committee of the Senate, a Standing Committee of the CCI and a Prime Minister’s Special Committee. He argued that the parliament had done its work and now it was time for the executive to do its share. The parliament had respected the court’s short order and passed the 19th Amendment. It had similarly strengthened the Election Commission of Pakistan and caretaker system through the 20th Amendment. He further added that it was was critical that the Population Census, which was pending since 2008 and formed the basis for redistribution of economic and political wealth among provinces was executed to push for the 8th NFC Award. Further, the cost of devolution was high and to facilitate it, a culture of hand holding was needed between the Centre and the provinces. In case of a dispute between the federation and provinces, the Supreme Court was the adjudication power.

“…it had re-written the federal-provincial pact and was different from other legislative, administrative and fiscal reforms in the sense that it had originated from within unlike most donor pushed reforms.”

The talk was followed by a Q&A session. Responding to criticism of the in-camera method of accomplishing the 18th Amendment, Khan said that it was the decision of the committee to restrict every single point from being discussed and trivialized by the media. The two points that did come out in the public sphere such as the conflict on the appointment of judges and the renaming of NWFP verified the committee’s concerns. Against the criticism that the 18th Amendment was not properly debated as both National Assembly and Senate took 4-5 days to pass it, he stated that the committee’s point of view was that party representatives were responsible for bringing back feedback from their respective party. So if there was no culture of party meetings, then maybe the issue lied somewhere else. Further, committee members and their associated parties were asked to prepare position papers to take parties and parliamentarians along.

When asked if he foresaw a decline in governance due to devolution and lack of provincial capacity, Khan remarked that in fact the devolved responsibilities were of areas whose implementation was already existing with the provinces. Thus, policy competence was the only new requirement, and probably an area for human resource investment.

“In case of a dispute between the federation and provinces, the Supreme Court was the adjudication power.”

Answering a question regarding the difference between social contract and a legal constitution, and whether Pakistan really had a social contract, Khan responded that sometimes a social contract evolved into a constitution. He stated that we had a weak contract, and a legal constitution which should be a political one at least in terms of affirming fundamental rights. However, our constitution did have the potential to graduate into a social contract.

When asked about his views on shifting some roles of the cabinet to the CCI, he wished that this issue was taken up by a province rather than an individual litigant in the High Court. The legislative competence and legal design lied with the federal government, however institutional design was the domain where provinces would have a say. Thus, there could be contested views between the federation and provinces, and Khyber Pakhtunkhwa had submitted a summary that because of joint ownership of oil and gas, provinces should also have representation on the OGDC board.

Answering a question regarding Article 91, whether the Prime Minister could be non-Muslim, Khan stated that the committee applied seven filters when looking at each clause: transparency (minimizing individual discretion), strengthening parliament and provincial assemblies, provincial autonomy, independence of judiciary, strengthening fundamental rights, questions of merit and good governance and strengthening of institutions. But it did not take up ideological debates as religious parties threatened not to participate.

On the question of why local governments didn’t have the same status as the other two tiers of government, Khan remarked that the 17th Amendment was retained in this regard while a requirement for the Election Commission to hold elections was added. Unfortunately the local government system had been used as a ladder of legitimacy by military regimes and thus the political class was quite allergic to it. Additionally, it was the attraction of awarding contracts, as MNAs got their own development funds and thus had little interest in local government. When this equation was changed during Musharraf’s time, seven MNAs had instead opted to become District Nazim. However, he stressed the importance of local government by stating that the transactional relationship of citizens with governance happened at the local level, and thus cynicism regarding the constitution and democracy required a political strengthening of local government.

“…it did not take up ideological debates as religious parties threatened not to participate. “

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“Jahan-e-Tahqeeq” is HEC Recognized, open-access, peer - reviewed, and refereed trilingual journal. The Journal strives to publish high - quality research in the domain of Arts and Humanities specifically on various languages across the globe. The journal aim s to provide opportunities to those scholars and researchers, who are working on different languages.  The Journal publishes only those articles, which are based on original research and have not been previously published elsewhere.

Pros and Cons of 18th Amendment: A study of Center-Province relations 2010-2022

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The 18th Constitutional Amendment, enacted in Pakistan in 2010, marked a significant shift in the country's governance structure by devolving powers to the provinces. This article critically examines the pros and cons of this transformative amendment, focusing specifically on its impact on the center-province relationship. On the positive side, the amendment sought to enhance provincial autonomy, granting provinces greater control over their resources and decision-making processes. This led to increased fiscal decentralization and empowered local governments. However, challenges emerged in the implementation phase, revealing potential drawbacks. The amendment's critics argue that it has strained the financial capacity of provinces, leading to disparities and raising concerns about national unity. Additionally, questions have been raised about the impact on federal institutions, as the devolution of powers may have weakened their ability to address national issues effectively. This article provides a comprehensive analysis of the 18th Constitutional Amendment's implications for the center-province relationship, shedding light on the nuanced dynamics that have unfolded since its enactment.

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Today's Paper | May 16, 2024

Anp new chief vows to protect 18th amendment at all costs.

PESHAWAR: The newly-elected central president of Awami National Party, Senator Aimal Wali Khan, has said that he will protect 18th Amendment at all costs as it guarantees rights of Pakhtuns.

Addressing the members of ANP central council at Bacha Khan Markaz here on Sunday soon after his election as president of the party, he said that 18th Amendment was part of Constitution but it was not being implemented rather it was under threat. He said that credit went to Asfandyar Wali Khan, who got approved it, which was base of life for Pakhtuns and others.

He said that living a life of slavery on Pakhtun land was not acceptable to them. “Bacha Khan has taught us that we are no one’s slaves in Pakhtun land. Everyone knows the way Pakhtuns have been subjected to slavery,” he added.

Aimal Wali said that all state institutions had to work within their constitutional jurisdiction to enable the country to move forward.

“Be it defence agencies, judiciary or parliament, whoever violates Constitution will harm Pakistan. For the last seventy years, an institution has neither respected Constitution nor its authority. We know for these people Constitution is a piece of paper. The slogan we have raised in Peshawar, Swabi, Swat and Charsadda during public meetings is the voice of the entire nation. Now defence agencies have to give priority to defence and go to border and barracks,” he said.

Aimal Wali elected president by central council of party

He said that everyone knew about the achievements of Asfandyar Wali Khan. He claimed that Asfandyar Wali Khan materialised the dreams of Bacha Khan, Wali Khan and their companions by naming the province as Khyber Pakhtunkhwa, which was a big challenge for ANP.

Aimal Wali said that his party’s central council and cabinet would take some important decisions, keeping in view the current situation. “I will make my first visit to Balochistan as central president of the party,” he announced.

Earlier, during intra-party elections, Senator Aimal Wali Khan was elected president unanimously by central council of ANP.

The meeting was held with chairman of election commission Mian Iftikhar Hussain in the chair. Former chief minister Ameer Haider Khan Hoti suggested the name of Aimal Wali for the top slot of the party. It was unanimously decided that Asfandyar Wali Khan would be Rahbar-i-Tehreek.

Other office-bearers include central senior vice president Senator Dawood Khan and general secretary Dr Mohammad Saleem Khan. From Islamabad, Jawad Khattak will work as vice president while Iffat Kulsoom Khatun will be vice president of the party. From Khyber Pakhtunkhwa, Parvez Khan of Swabi and Dr Noorjahan Khatun were elected vice presidents.

From Balochistan, Faridullah Damar and Salma Kakar were named as vice presidents. Similarly, Syed Attaullah Shah and Advocate Qudsia Shaheen were elected vice presidents from Punjab province. Anwarzeb Khan and Shazia Razak Marwat will be vice presidents from Sindh province.

From Saraiki unit, Mohammad Nadeem Qureshi and Madam Abida Khan will be vice presidents of ANP. Obaidullah Abid will be additional general secretary and Aurangzeb Khan will be deputy general secretary while Javed Kakar will be additional deputy general secretary.

Senator Haji Hidayatullah Khan has been elected central finance secretary while Engineer Ehsanullah will be spokesperson of the party. Sardar Hussain Babak will be foreign affairs secretary while Khadim Hussain will be culture secretary. Hussain Ahmed (Khan Nawab) and Shaughta Malik Khatun will be joint secretaries from Khyber Pakhtunkhwa.

From Balochistan, Mohammad Anwar Khan and Shahina Kakar Khatun will work as joint secretaries. Bahadur Khan and Hudiba Rafique Khatun will be joint secretaries form Punjab. From Sindh, Hanif Shah Agha and Arooj Ghafoor Khatun will be joint secretaries. Qazi Izhar and Saima Bashir Khatun will be joint secretaries from Islamabad.

From Saraiki unit, Dr Mohammad Akram Khan and Nosheen Khan will work as joint secretaries. Maulana Khanzeb will be central secretary for ulema while Dr Waqar Ahmed will be secretary for teachers’ affairs.

Azeem Khan Bilour and Wagma Bazai have been elected as central secretaries for youth affairs. Saifullah Fazal will be secretary social media while Amarjeet Malhotra will be secretary minority Affairs. Advocate Khushdil Khan has been elected as central secretary for human rights.

Mohammad Farooq Bangash will be labour secretary while Sardar Rashid Khan Nasir will be secretary for students’ affairs. Advocate Sangin Khan has been elected central secretary for lawyers’ affairs. Dr Shaukat Jamal Amirzada will be central secretary for welfare of doctors. Engineer Zard Ali Khan has been elected secretary for engineers’ affairs. Dr Mehrib Moeez Awan will be secretary for rights of transgender persons and Malik Faqir Ali will be central Salar.

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