This article was published in Dawn News on April 16, 2018. It is available here:
IT was eight years ago on April 19, 2010, that then president Asif Zardari signed the Constitution (Eighteenth) Amendment Bill, 2010, into law after its unanimous passage in the two houses of parliament. The amendment, a landmark in Pakistan’s constitutional history, altered some 97 articles or more than one-third of the Constitution. This was the biggest constitutional undertaking since the historic adoption of the 1973 Constitution.
The 18th Amendment reversed the balance of power between the president and prime minister restoring the original parliamentary character of the Constitution. It introduced significant electoral reforms making the Election Commission a permanent body with fulltime members. A number of good democratic practices including curtailment of discretionary powers of public officials were introduced through the amendment besides cleansing the Constitution of the marks left by successive military dictators.
The most prominent and hotly debated aspect of the amendment, however, relates to provincial autonomy and centre-province relations. There is a sizeable body of opinion among politicians, political scientists, governance practitioners and the public that the pendulum of granting greater powers to the provinces swung too far in this endeavour, with the result that it is becoming increasingly unworkable to run the affairs of the federation smoothly and effectively. An equally intense feeling resides especially in the smaller provinces, as one reads through parliamentary debates on the amendment, that the centre should retain only three subjects namely defence, foreign relations and currency.
No one can think of undoing the 18th Amendment but an honest review is in order.
Eight years on, the debate still rages and a comment recently attributed to the chief of army staff and subsequently at least partly denied by the DG ISPR further intensified the debate on what many regard as the diluted powers of the federal government. A recent Supreme Court judgement rejecting appeals against the validity of the Industrial Relations Act, 2012, in light of the 18th Amendment opened up fresh avenues of interpreting the amendment especially in relation to the federation’s international obligations. Earlier, a decision of the Islamabad High Court highlighted the limit of powers that the federal government can exercise in relation to federal regulatory authorities such as Pemra and Ogra. Approval by the Council of Common Interests was cited as mandatory for the federal government before it even places a regulatory authority under one ministry or the other. This is probably why two members of the parliamentary committee on constitutional reforms (PCCR), S.M. Zafar and Waseem Sajjad, had termed the CCI as the ‘government in a government’.
Looking back, one should commend Asif Zardari for voluntarily taking the bold initiative of surrendering his powers.
As Pakistanis, we can also celebrate the political process which culminated in the passage of the 18th Amendment. The maturity of the committee members and the spirit of cooperation with political adversaries for a common goal prevailed throughout the arduous journey spanning over 10 months while the PCCR met for some 400 hours in 77 sittings sifting through close to 1,000 public proposals. Such democratic spirit and ability to work together across the political divide is difficult to imagine in the current acrimonious atmosphere.
The resolute leadership of Raza Rabbani as PCCR chairman was the single most decisive factor in the successful conclusion of the process. The highly complex and sensitive job of devolving 18 federal ministries and divisions to the provinces was also completed by the implementation commission headed by its chairman Raza Rabbani and deputy chairman Ishaq Dar within the allotted period of one year.
While celebrating the amendment’s successes, one can also look back and learn from some of the weak areas of the process and the product it yielded. To begin with, the confidentiality of PCCR proceedings was understandable to a point but cutting short the process of public and parliamentary debate after the committee laid its report before parliament is not understandable. The National Assembly debated the 18th Amendment bill for just two days and only 18 of its 342 members took part in the debate. The quality of debate in the Senate was better as four days were allowed for the debate in which some 60 senators participated. Compared to this, parliamentary debate on the 1973 Constitution continued for two months and seven days. Debate on the Eighth Constitutional Amendment lasted for 41 days. Parliamentary debate on the Second Constitutional Amendment lasted for two months despite the huge pressure to hurry the process of declaring Ahmadis as non-Muslims.
The PCCR’s composition can also be commented upon. The Senate constitutes about 23 per cent of the total parliament but its representation on the PCCR was more than twice this proportion. Fifteen out of a total of 26 members of the committee or 58pc came from the Senate. Three mainstream parties, the PPP, PML-N and PML-Q, which had a combined representation of around 75pc in the two houses could field only 11pc or 42pc representatives in the PCCR.
While the insurgency raged in Balochistan, the representatives from Balochistan appeared to be under tremendous pressure to achieve ‘tangible results’ to vindicate their decision to participate in the democratic process. This, in turn, put the entire committee and parliament under pressure. The decision to entirely abolish the Concurrent List and making a substantive part of the federal subjects also dependent upon the approval of CCI was probably taken in that pressured atmosphere. These are all political realities and one can only operate within the given realities of the time.
The 18th Amendment and what it constitutes is a reality. No one can think of undoing it but parliament, the political parties and think tanks can always take stock of what the 18th Amendment could and could not achieve in the past eight years and how the unfinished business of its implementation can be completed without compromising the effectiveness of the federal and provincial governments. One should never feel shy of self-appraisal.