Volume 23 Issue 2, February 2019
 
 

 

The 18th Amendment since its adoption has been a source of a serious and large controversy. The matter is once again in the news after some recent statements from different quarters. Apparently, there is a division of opinion over it amongst various stakeholders. Some circles believe that the Amendment has undermined and weakened the Federation while some provinces and politicians understand that the Amendment gave them autonomy from the domination of the Punjabis and the Establishment.

A look at the Amendment would show that it added, amended, substituted or repealed 97 articles of the Constitution. Three new fundamental rights (fair trial and due process, right to information and the right to free primary education) were added. The Senate also got some say in financial matters. The selection of High Court and Supreme Court judges was taken away from the Executive and given to a Judicial Commission dominated by the Judiciary. But most critically, the Concurrent Legislative List (CLL) was abolished, mineral oil and gas were jointly vested in the Provinces and the Federation and additional taxing power was given to the Provinces and, finally, it increased and secured the share of Provinces in the revenues collected by the Federation. Some other minor but ornamental amendments too were made in the names of Provinces, etc.

The Constitution Committee, which drafted the Amendment, had 27 members from the PPPP, PML (N) and MQM, and were supported by nationalist parties, like the ANP, BNP, PKMAP. Its proceedings were held in-camera. Its terms of reference were arbitrarily determined. The raison d'être given for such large scale and substantial amendments in the Constitution was the Charter of Democracy (2006), which was meant to remove interpolations made during the military regimes in the Constitution and to address the grievances of smaller provinces. This claim was only satisfied. The 1973 Constitution envisaged a strong Federal Executive (Prime Ministerial system). General Zia-ul-Haq diluted it. The Amendment not only maintained this position but actually created confusion by making a thoughtless amendment in Article 90. The Supreme Court in the Mustafa Impex case (2016) apparently did not appreciate the underlying constitutional principles of the parliamentary form of government, a basic feature of the Constitution, and applied principles of literal construction, alien to constitutional interpretation and further eroded functioning of the Executive. Similarly, qualifications and disqualifications in Articles 62 and 63, The Caretaker Governments and the Federal Shariat Court, added through PCOs and the 8th Amendment, were also retained.

Unlike 1972-73, when the former PM Zulfikar Ali Bhutto, his PPP and other prominent leaders and parties, who supported a strong Federation, this time around, there was none to plead the case for the Federation. The present political elite equated the armed forces and bureaucracy with the Federation. Granted, military interventions, parochial politics, lack of competent and honest leadership, deprivation and disillusionments resulting from unequal distribution of state resources, created distrust amongst the federating units but that could not be a ground for weakening the Federation. This leads us to the underlying issues.

There are three main issues behind the present controversy. Abolition of CLL (Concurrent Legislative List), distribution of revenues and sharing of natural resources. The abolition of CLL has created gigantic administrative problems. There were about 47 legislative entries in the CLL in the original constitution of 1973, agreed upon after the Constitutional Accords of 1972-73. With the abolition of CLL, all these subjects were transferred to the Provinces, which lacked capacity to undertake this responsibility. These newly devolved subjects needed an administrative setup and expertise, which was obviously lacking. The result is ultimate chaos.

Secondly, the amendment introdu-ced a new system of distribution of revenues collected by the Federation. Hitherto, the Provinces were getting Federal Excise Duty and royalty on natural gas (mineral oil added) in addition to their shares in the NFC Award under Article 160. The Amendment gave sales tax on services to the Provinces. With the introduction of Clauses 3A and 3B in Article 160, Federal share in the Award was reduced. Under clause 3A, the share of a province could not be decreased from its share in the previous Award, meaning thereby that despite an increase in the estimates and demands of the Federal Government, the provinces’ share could not be reduced. Unlike other countries, the provinces are getting 57.5% of the revenue collected. The Federation is left with only 42.5% that will technically decrease in future awards.

There is demand for a fresh award after every 5 years. The War on Terror and foreign debts servicing has aggravated the situation. A perception thus emerged that this Clause was deliberately added to weaken the Federation. It is argued that if the object was to increase the resources of Provinces then taxes and fees with respect to the devolved subjects and sales tax on services in addition to the existing provincial taxes and earlier share under the Award were sufficient. There was no need to add clauses 3A and 3B. Foreign and local debts were expended throughout Pakistan but they were to be paid by the Federal Government only. Debts servicing and defence estimates cannot be met unless the provinces contribute towards it. This is the main issue. Unless a new provision is made for an independent Federal taxing power, the issue will persist.

The last issue is the joint vesting of natural gas and mineral oil in the Federation and Provinces under the Amendment. Natural resources belong to the State and are a public trust. Oil and gas so far have been discovered in Balochistan, Sindh and KPK. The issue of priority over the use and sharing of revenues is a great source of stress for the Federation and relations amongst the provinces. Joint vesting to the extent to share of proceeds of profits is a welcome thing. Claim of priority and ownerships has created immense litigation and tensions amongst the provinces.

A strong Federation is the ultimate guarantee of joint defence, sovereignty, integrity and prosperity of Pakistan. The Constitution makers in 1973 were quite mindful of provincial autonomy but they were not strong. Debates on the Constitution and accords made in 1972-73 are a proof of it. The Amendment is a backward step in the journey of national cohesion.

The writer is an Advocate of the Supreme Court and former Additional Attorney General of Pakistan. He holds an LL.M. degree from Harvard Law School and is the co-author of a book ‘Comparative Constitutional Law.’ He can be reached at mwaqarrana@yahoo.com
   
 
 

 
 
 
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