Chitral News

Published regularly since 2003

Perils of the 18th Amendment

27 Jan, 2019

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.. by Raza Muhammad Khan

OUR founding father had stated in June 1948: ‘It naturally pains me to find the curse of provincialism holding sway over any section of Pakistan. Pakistan must be rid of this evil. —At this juncture any subordination of the larger interest of the state to the provincial or local or personal interest would be suicidal’. By enacting the 18th Constitutional Amendment, it appears that we may be treading the perilous path pointed out by the Quaid, as many of the 100 articles of the 1973 Constitution, that were amended, substituted, inserted, deleted or repealed, unduly favour the provinces at the expense of the Federation. Consider the following: The concurrent legislative list (CLL), comprising 47 subjects has been abolished and all residual subjects, not listed in the CLL or the federal legislative (FLL), have been assigned to the provinces, which can now collect taxes on many additional subjects. Concurrency means simultaneous authority of the federal and provincial governments over subjects of mutual concern, which is a norm in most federations, e.g. explosives, ammunition, arbitration, health, education, environment and preventive detention under federal authority etc.

In India, 49 such subjects are part of CLL and all residual powers remain with the Union. Senator SM Zafar, a senior member of the Parliamentary Committee (PC) for the purpose argued in his note of dissent ‘that the omission of the CLL was a violation of the basic structure of the 1973 Constitution, — which shall confront the country with innumerable problems’. However, this opinion was ignored. Henceforth, the federal government will control only five subjects — finance, defence, foreign affairs, communications and revenue. But it will find it difficult to handle even these subjects, since it does not have adequate funds for the purpose, or for debt servicing, which consumes over 30 % of our budget, that is likely to rise in the future. Why? Because the share of the Centre in the NFC Award (resource distribution), has been perpetually reduced from over 57 % in the past to 42.5 %. In India, only 42 % of the resources are allocated to the states.

A recent IMF report observed that this decision was flawed as it has no provision for unforeseen contingencies including security related or natural catastrophes, special grants for unpredicted needs, retiring public sector debt and electricity management (circular debt etc). Besides it could diminish the incentive by the provinces to raise additional taxes themselves.

The share of royalty of the provinces on oil and gas resources has also been enhanced from 11.5% to 50%. In short, the provinces are now much richer with very few obligations, while the centre is unable to meet all its financial compulsions towards federal development, sovereignty, FATA merger, countering terrorism or varied international commitments. Additional taxation by the Centre or arranging more loans are not the cures for this mortal predicament. Another dichotomy has been created where the provinces have been authorized to obtain loans but all debts are to be by management by the Centre. The composition of the PC for the 18th Amendment comprising 15 Senators and 11 MNAs (none from PTI) was also faulty, as majority of Senators with regional affiliations diluted the case (if there was any) of the Centre. The terms of reference of the Committee included measures on provision of good governance to the common citizen, meeting the democratic and Islamic aspirations of the people; however, it is difficult to discern any such effort in its work.

The Committee should have promoted an informed debate on the matter but it kept its deliberations secret, ostensibly to encourage frank discussion and unanimity. The Committee assigned only a 40 days period to receive over 800 recommendations from the general public. It is unclear how many of these were incorporated; however, opinions of all stakeholders should have been solicited three months before the Amendments. The Committee’s claim of strengthening the Federation, through joint supervision of federal resources, through a revamped Council of Common Interest (CCI), is a travesty, since the Centre has been further marginalized by empowering the CCI over vital federal subjects.

Most democracies allow two 5 years terms for heads of governments; however, this restriction has been removed in Pakistan, which negates the true spirit of democracy. Provincial elites now handle large funds with minimal oversight. The Centre’s power to impose Governor’s rule in a province has been radically reduced, even on account of very poor governance, civil unrest, gross mismanagement, and endemic corruption and even internal disturbance that is outside the power of a provincial government. Central planning on any subject in provincial domain will now be tough and the provinces can even disregard the standardized national educational curricula, to reflect their parochial or political beliefs therein. This could be dangerously divisive.

Drugs regulation is now a provincial subject but they lack the capacity for this. Senator Wasim Sajjad, another member of the PC suggested an amendment to disallow elections of a person from multiple seats at the same time, as it imposes many by-elections at crucial moments later, but this was also ignored. The 18 Amendment was clearly made in a haste (385 working hours) without exercising due diligence. The former CJP had therefore astutely observed on 4 Jan that ‘— it was difficult for the court to interpret the Amendment in the absence of parliamentary debate on it’. As debate is a substantial ingredient of democracy, the lack of it on this crucial Amendment is appalling indeed. The equation between the Centre and the provinces ought to be urgently rebalanced. For the sake of the country and itself, the Federal Government must provisionally resolve these grave concerns through the CCI. Simultaneously it must engage with like-minded parties to strike out the perfidious clauses of this Amendment, either through Parliament, judicial interpretation or a national referendum under Article 48(6) of Constitution.
— The writer, a retired Lt Gen, is former President of National Defence University, Islamabad.

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