By Yasmeen Aftab Ali
When it comes to Pakistan’s constitutional history, the “core” of all our constitutions can be found in the Act of India 1935. This was a document “by aliens to rule aliens on the fault lines of ethnic divide”. However, the basic fault lines were never corrected in the later constitutions. Then, the “18th Amendment” ushered in major constitutional changes; including taking away of the right of the President of Pakistan to dissolve the parliament. Even though well-intended, but when translated into law, the Amendment might go down in history as one of the most devastating pieces of legislation enacted in the country.
18th Amendment – A Background
Passed on April 8, 2010, the 18th Amendment aimed at taking away the powers of the President to dissolve the Parliament. A brief introduction to the Constitutional history is needed to comprehend the change. The Act of India 1935 served as the first constituent document of Pakistan, dividing Pakistan on ethnic grounds thereby creating the fault lines that have somewhat existed to date.
The Constitutions of both 1956 and 1962 were abrogated. In October 1958, President Iskandar Mirza abrogated the Constitution. Then, the Constitution of Pakistan 1962 had a very short life and was abrogated in 1969 and the power passed on to General Yahya Khan. Yahya abolished the one-unit system opting for holding general elections on one-man one-vote basis.
It was under General Zia-ul-Haq that the right of the President to dissolve the President by enacting the 8th Amendment was inserted in the Constitution. Removed by Nawaz Sharif during his second stint as the Prime Minister, the right found its way back during the reign of General Pervez Musharraf.
The 18th Amendment brought about major changes in the Constitution of Pakistan 1973, including taking away the right of President of Pakistan to dissolve the Parliament. However, the 18th Amendment was much more expansive in nature, changing the very face of the governance structures.
The Constitution of Pakistan 1973 was created in a backdrop of bloodshed and the country splitting into two in 1971. The atmosphere was one of despair. Essentially, the Constitution laid emphasis on being based on Islamic principles. It laid emphasis on being a Federal Parliamentary based instrument. It laid emphasis on provincial autonomy. It laid emphasis on supremacy of Judiciary. It also laid emphasis on Fundamental Rights. Unfortunately, it continued to flirt with the fault lines laid down in The Government of India Act 1935.
The Constitution of 1973 changed face when 8th and 17th Constitutional Amendments found a way in. The changes inflicted havoc upon the democratic structure of the document centralizing power at the expense of provincial autonomy.
The nation then saw the birth of the Charter of Democracy in 2006 – a document signed by late Benazir Bhutto and Nawaz Sharif in year 2006 followed by an All Parties Conference where members pledged struggle against Musharraf to establish a democratic order in the country.
Movement to implement ‘Rule of Law’ gained momentum, leading to ouster of General Musharraf from power. The then President Asif Ali Zardari constituted a Special Committee of Parliament to suggest Constitutional amendments not only to stop abrogation of the Constitution but also to create laws so that different provinces may be free to manage the issues and needs unique to their province with greater freedom to undertake decisions.
The changes, however, were not well analysed. The short-sighted formation of the Amendment is briefly but succinctly touched upon in a Dawn Editorial:
“Oddly, our parliamentarians didn’t see it fit to address even those of Gen Zia’s clauses that directly impact them: the qualification and disqualification criteria in articles 62 and 63 that have been infused with an ‘Islamic’ spirit. And stranger yet for a federal government formed by a coalition of the country’s most secular parties, the clause dealing with the prime minister’s election has been amended to make only Muslim members of the National Assembly eligible as candidates. True, the oath of office that the prime minister has to take (set out in the third schedule of the constitution) has always made clear that he/she has to be a Muslim and, realistically speaking, there is a remote chance of a non-Muslim candidate emerging for the prime minister’s slot. But it is an odd message to reinforce: don’t bother applying, you are second-class citizens. That is what the government seems to have told the country’s religious minorities.
Perhaps the government was afraid that visiting the Islamic clauses issue in this round of constitutional change would have made the whole package controversial and jeopardize the repeal of the 17th Amendment and the enhancement of provincial autonomy — the key demands as we speak. Going forward though this should be less of a concern. If it means taking on the fringe, ultra-conservative elements in politics and society, then so be it. There is something terribly peculiar about the argument that a military general who toppled a government and executed a prime minister before disfiguring the constitution drawn up by the country’s elected representatives could be introducing ‘God’s laws’ which by definition are sacrosanct and untouchable. Gen Zia exploited religion in the most cynical and destructive way possible to prolong his hold on power. Parliament must undo the legacy of Gen Zia, and to do so it must re-examine the Hudood and blasphemy laws too” (April 10, 2014).
Whereas there were many changes made in form of the 18th Amendment, the basic structures of Article 62 and 63 was left untouched.
Out of 342 Members of National Assembly, 292 voted in favour of the 18th Amendment. The Amendment brought about major structural changes in the Constitution:
a. It conferred powers upon the Prime Minister that he did not have making him a powerful Head.
b. It turned the President into a toothless tiger.
c. It allowed the Prime Minister to hold the seat more than two times largely seen as facilitation for Nawaz Sharif to become Prime Minister a third time.
d. It took away right from the courts to endorse Constitution being suspended (as happened when Musharraf taking power where few judges opposed, and many took oath under the PCO)
e. It took away right of the President to impose emergency rule in any province or dissolve Parliament until with the concurrence of the Prime Minister.
f. Appointments of Chiefs of Army, Navy, Air force, Chairman Joint Chiefs of Staff Committee and Governor to be appointed upon advice of PM. (Quoted)
Impact of 18th Amendment
Removing bar on PM’s two terms
The powers of the Prime Minister have significantly grown under the 18th Amendment. But the biggest boost was removing the two-time bar to hold the position. This is not the case in the leading western powers – and for a good reason. The reason, as explained by President Harry S Truman, proposed to the Hoover Commission was that having Presidents for unlimited terms will create a kind of monarchy that will be self-defeating after the sacrifices made in the Revolutionary War known better as the American Revolution.
Pakistan, from having a progressive law of a two-term limit for a Prime Minister, moved to a retrogressive law of allowing more than two stints at premiership times largely seen as facilitation for Nawaz Sharif to become Prime Minister a third time. In Pakistan the turn of democratic norms in-party and nationally to a dynastic springboard allowing appointment of favoured people at crucial spots to serve vested interests has destroyed institutions at the expense of strengthening individuals.
Abolition of Concurrent List
The reason promoted to abolish the Concurrent List under the 18th Amendment was to promote provincial autonomy. However, we need to look at this claim a little more closely. Being a Federation, Pakistan has based its administration on many levels including the Central government or Federal government and the provinces being units connected to the Centre.
Certain entries stand removed from Federal Legislative List I and have effectively been shifted to provinces. Others have been shifted to Federal Legislative List II thereby bringing it under joint supervision of Federation & Provinces. The Concurrent List stood abolished completely. In this regard, the Dawn Newspaper argues:
“The question that should have been addressed prior to passing of the 18th Amendment is if passing on responsibilities of the federation to the provinces will actually a) enhance provincial autonomy b) result in better managing of the responsibilities at the provincial level c) will effectively maintain consistency of policy on issues requiring a national direction”. (Dawn April 8, 2010)
None of the above three basic criteria were met by the 18th Amendment.
Instead of focusing on making Pakistan into an effective federal state with a balanced approach towards its provinces, the 18th Amendment worked towards devolution of powers without too much effort going into analysing the impact the Amendment would have upon the legal structure of the country. Moreover, there was also a lavk of setting up infrastructures for good governance to trickle down to grassroots levels and thereby the common man prior to introduction of the law.
Education & 18th Amendment
Education was one subject devolved at the provincial level. This was done without thinking through that
a) whether the provinces are equipped in terms of teachers, infra structures and educationalists to develop courses and other related necessary base needed to take advantage & implement this devolution, and
b) whether ALL provinces equally have the aforementioned basic variables in place failing which this inclusion would inevitably lead to unequal standard of education in different provinces leading to disadvantage of those provinces lagging behind in many fields; Civil Services being only one of them.
The Higher Education Commission’s (HEC) existence was also challenged, however, on April 12, 2011, the Supreme Court allowed it to discharge its duties & perform functions under HEC Ordinance 2002.
Moreover, under the Amendment, not only are the provincial governments responsible for paying all education-related costs including stationery, schoolbags and transport for children aged 5 to 16 age, they are also obligated to provide education. Moreover, the governments are also responsible for monitoring private sector education as well. However, there remain complications as well. Dr Syed Manzar Abbas Zaidi, in his paper for SISA in 2013, argues:
“Another interesting question raises its head. War on terror is being conducted on Pakistan soil. There has been a lot of talk on media about taking on board and regulating education imparted in madrassahs seen as breeding ground of religious extremism. Steps taken by the civil government at different levels support and compliment military actions against extremism. Each madrassah has its own curriculum, its own method of education and awarding of certificates etc”.
In this regard, not only is there division between Sunni & Shia Madrassahs, there are sects within. The question that poses itself is; will the provinces monitor, check and oversee what is taught in these nurseries even if content is determined by the federation? Do they have the apparatus & the ability to do so?
A lot of foreign funding flows into education in Pakistan. With the 18th Amendment, the funding institutions logically are talking to the provinces. In this situation, what monitoring rights do the federation has to ensure that the funds are properly not only channelized but also that the national and sectarian harmony is not compromised?
Health & 18th Amendment
Another negative resulting from the 18th Amendment was the devolution of health services to provinces, with no central checking authority. The provinces are/were ill equipped to handle this critical area of social wellbeing and service to people. In this regard, Ayyaz Kiyyani argues, “While the idea of moving power bases nearer the people is generally welcomed by most, provincial governments at the moment are still at an early stage of preparation to assume the new responsibilities.” (Dawn July 10, 2011). Where the world is moving towards regulation of drugs, Pakistan has moved towards the deregulation of the same.
Another issue coming out of this has been that of counterfeit drugs. The Pakistan Manual of Drug Laws, defines a counterfeit drug as “a drug, the label or outer packing of which is an imitation of, resembles or so resembles as to be calculated to deceive the label or outer packing of a drug manufacturer”. When teams of Drug Regulatory Authority of Pakistan (DRAP) and Federal Investigation Agency (FIA) conducted a joint raid at a factory in Kahuta Industrial Area, it was discovered that counterfeit medicine was being manufactured at the facility.
It was found out in the raid that one of the major drugs being produced at this factory was Sofosbuvir, which was sold under the brand name Sovaldi. It is worth noting that this drug is used to treat hepatitis C, which costs a patient Rs55000 for one month of treatment, with treatments lasting up to six months of treatment. Another drug Everlong, the registration for which was cancelled by the DRAP, was also being manufactured unlawfully at the factory. There are just a few examples of how the health sector might have further deteriorated with the devolution of powers to provinces.
The World Health Organisation had also expressed its reservations over the state of Health sector after the 18th Amendment. In 2011, in a letter to the then PM Gillani, the World Health Organisation (WHO) expressed concerns over the devolution of the Ministry of Health to the provinces. The concern of the WHO was that the provinces did not have enough resources, infrastructure and medical staff and if the provinces were given the responsibility of health sector in such circumstances, it would wreak havoc”, a source, quoted in the Pakistan Today, said.
Questions raised by the 18th Amendment
The discussion on the 18th Amendment also raises several important questions:
Should the Federation absolve itself of its overall check and balance authority upon the provinces?
Should the federal structure allow a variety of policies on same issue by different provinces?
What if there is conflict between the Provincial and Federal Government in how the approach each subject?
Does the current arrangement make the Federal structures less effective?
Though supporters of the 18th Amendments say strong provinces ensure strong centre….. has this happened on ground?
Were and are the provinces strong enough to rise to the challenge and take advantage of this huge change in shape of 18th Amendment?
These are the questions that need to be answered by the Parliament while deciding on how to govern the country in the near future.
The 18th Amendment has created a governance gap; where it has removed the Federal umbrella, funnelling finances to provinces without checks and accountability. The recent revelations in the “Fake Accounts Case” in Sindh, if proved, will reflect the weakness of the federation, but not necessarily at the cost of strengthening of the provinces. The 18th Amendment has so far not offered much to the common man and has neither managed to lead to a smoother interaction between the federal and provincial levels.
Unfortunately, should PTI wish to put the house in order on this front, it is faced with a strong opposition, having weak numbers but in the National Assembly and Senate. It is, therefore, all a game of numbers. Even if a revisit is sought, one doubts much will come out of it. Which pretty much leaves us with a constitution based on the Act of India 1935, the Articles included and changed by Gen Zia and the 18th Amendment all joining together to create a recipe for disastrous governance.
The writer is a lawyer, academic and political analyst. She has authored a book titled ‘A Comparative Analysis of Media & Media Laws in Pakistan.’ She can be contacted at: firstname.lastname@example.org tweets at @yasmeen_9