Pakistan Constitution’ s 18th Amendment and Provincial Autonomy: An unfinished Job
by: Khalid Hashmani (cLean, Virginia, USA)
The 18th amendment to Pakistan’s constitution became law after country’s President signed it on April 19, 2010. This historic accomplishment was achieved after many rounds of discussions and compromises. The key achievement of endeavor was restore much of the original 1973 constitution and to shift away the massive power that was given to the Presidency under military dictators General Zia-ul-Haq and General Pervez Musharraf. However, the people of small provinces were once again cheated away and the promise of provincial autonomy was largely limited to cosmetic changes and use of buzz words such as abolition of the concurrent legislative list containing subjects where the Federal government and the four provincial had shared jurisdiction prior to the 18th amendment. Indeed, it was the long standing demand of provinces to do away with concurrent list and restore sole provincial jurisdiction as provinces had enjoyed under British before Pakistan was created. What actually has happened under the 18th amendment that the central government has assumed the jurisdiction over most important subjects and let provinces have jurisdiction over less important subjects. On top of this, a provision (Article 143) that before 18th amendment allowed the federal government to enact laws only in the subjects covered under federal legislative and concurrent legislative list have been extended giving authority to the Federal legislature to void any acts passed by a Provincial Assembly. This means that an act passed by a provincial assembly in a subject area that is totally under the jurisdiction of the province can be voided by an act passed by the Federal legislature with simple majority. Before 18th amendment such an act would have required a constitutional amendment. In a country such as Pakistan, where one province had more members in the National Assembly than the combined total of other provinces, this change gives the largest province of Pakistan to override any provincial laws with ease as it could easily muster simple majority from that province alone.
Where 18th Amendment failed to meet expectations of small provinces?
1. Failed to reaffirm the principles of 1940 Resolution principles namely the promises of provincial “autonomy” and “sovereignty” .
2. Failed to include Baluchi, Pashto, Punjabi, and Sindhi as national languages of Pakistan.
3. Article: 39 – Participation of people in Armed Forces – Failed to include a provision that the military will strive to build a truly national organization that is ethnically-balanced and representative of all minorities of Pakistan. A provision should have been made to achieve this balance within five to ten years.
4. Articles: 59 and 73 – Senate Composition and money powers: Failed to change composition of Senate so the exactly 25 members from each province will be elected to Senate in a national vote and would hold a veto over any laws passed by the National Assembly.
5. Article 143: Inconsistency between Federal and Provincial laws
This article previously allowed federal legislature “to enact, or to any provision of any existing law with respect to any of the matters enumerated in the Concurrent Legislative List, then the Act of [Majlis-e-Shoora (Parliament) ], whether passed before or after the Act of the Provincial Assembly, or, as the case may be, the existing law, shall prevail and the Act of the Provincial Assembly shall, to the extent of the repugnancy, be void.”
Under 18th amendment it simply says “to enact, or to any provision of any existing law with respect to any of the matters, then the Act of [Majlis-e-Shoora (Parliament) ], whether passed before or after the Act of the Provincial Assembly, or, as the case may be, the existing law, shall prevail and the Act of the Provincial Assembly shall, to the extent of the repugnancy, be void.”
The serious implication of this change is that Federal Legislature can override any legislation passed by provincial legislature even those laws that are in provincial jurisdiction.
6. Article 156 – National Economic Council – This article had a provision that “the President shall nominate one member from each Province on the recommendation of the Government of that Province.” The 18th amendment has removed the words “on the recommendation of the Government of that Province.” has been REMOVED as Prime Minister can now appoint 4 other members of the council.
The implication of this change is that Federal Government will solely determine who will be the members of the National Economic Council thereby further diminishing the participation of provincial governments in how national economics is handled – this is another serious attack against provincial autonomy.
7. Fourth Schedule (Article 70(4) – Federal and Concurrent Legislative Lists – Provinces did not regain the right to impose sales tax on purchased goods as is the case in most democratic federal states such as Canada and the USA.
8. Necessary amendment should have been made for transparency in defense budget and ability for the members of the National Assembly and Senate to question military leaders in broad terms whether or not expenditures were being well spent.
9. A provision should have been made requiring all provinces to abide by Indus River Water Accord and other agreements.
Where 18th Amendment met expectations of small provinces?
1. Article 38 .Promotion of social and economic well-being of the people.- Added new paragraph (g) the shares of the Provinces in federal services, including autonomous bodies and corporations established by, or under the control of the Federal Government, shall be secured and any omission.
2. Article 156 – National Economic Council – 18th Amendment adds words “added “Balanced development and regional equity”.
3. Article 161 – Natural gas and hydro-electric power – 18th Amendment adds clauses that:
(a)· the net proceeds of Federal duty of excise on natural gas levied at well-head and collected by the Federal Government and of the royalty collected by the Federal Government, shall not form part of the Federal Consolidated Fund and shall be paid to the Province in which the well-head of natural gas is situated;
(b) the net proceeds of the Federal duty of excise on oil levied at well-head and collected by the Federal Government, shall not form part of the Federal Consolidated Fund and shall be paid to the Province in which the well-head of oil is situated.
4. Article 167 – Borrowing by Provincial Government — 18th Amendment: After clause (3) the following new clause shall be inserted, namely :”( 4) A Province may raise domestic’ or international loan, or give guarantees on the security of the Provincial Consolidated Fund”.
5. Article 172 – Reports of Auditor-General – 18th Amendment adds a provision that “Subject to. the existing commitments and obligations, mineral oil and natural gas within the Province or the territorial waters adjacent there to shall vest jointly and equally in that Province and the Federal Government”.
Although it was the demand of the provinces that they should have equal ownership in all mineral oil and natural gas fields including the existing ones which the above clause continues to keep under federal ownership. Nevertheless, it is a reasonable compromise.
6. Under the 18th amendment, the following matters are moved from PART I (where jurisdiction is strictly federal) to PART II (where Council of Common Interests advises):
* Major Ports
* National planning and national economic coordination
* Legal, medical and other professions
*Standards in institutions for higher education and research, scientific and technical institutions.
7. Other than some jurisdictions from Concurrent Legislative List and Part I of Federal Legislative list that have been moved to PART II of Federal Legislative list, the Concurrent List is abolished and the Provinces regained the jurisdictions on the following matters:
* Sales Tax on Services (The fact is in most democratic countries.
* Duties in respect of succession to property.
* Estate duty in respect of property.
Ambiguities that may hurt interests of Sindh more!
1. Article 160 – National Finance Commission – 18th Amendment: Added a clause that “The share of the Provinces in each Award of National Finance Commission shall not be less than the share given in the previous Award.” – It is not clear if it is meant that share in absolute amount or percentage?
2. Fourth Schedule (Article 70(4) – Federal and Concurrent Legislative Lists (reproduced at the end of this article) – 18th Amendment Federal Legislative List PART I 1 adds mineral resources and boilers necessary for production of nuclear energy under federal jurisdiction. The question is does this mean that all boilers and mineral resources that can be used in generating nuclear energy will fall under the federal jurisdiction. If so, then pretty much federal government clawback control over oil, gas and installing boilers in a province.
Like 1973, history once again presented a great opportunity to Pakistan’s seasoned political leaders and behind-the-scene power brokers to create a balanced set-up and demonstrate to the people of Sindh and Balochistan that they have a fair stake in the country. Unfortunately, the history repeated and the opportunity for a balanced provincial autonomy was lost. The prudence says that in the context of provincial autonomy, 18th amendment would hardly appease the Baloch of Balochistan and armed conflict in the western hills of Pakistan will likely continue. It is a sure bet that five or ten years’ time, a new set of players would be having another round of discussion about how to bring about the provisions of sovereignty and autonomy touted in the 1940 resolution back into the constitution.
About Author: Mr. Khalid Hashmani is a Washington DC-based veteran human rights activist. He is the founding President of Sindhi Association of North America (SANA) and Chief coordinator of Sindhi Excellence Team (SET) that participates in advocacy activities on behalf of rural Sindhis.
Text of 18th Amendment
Text of 1973 Constitution