18th Amendment: Implications for Provincial Autonomy and Governance

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.

CPPG fcKhan 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. “