By Nasir Zaman
Since the inception, Pakistan has seen many constitutional ups and downs. With two abrogated constitutions and many non-democratic and totalitarianAmendments in the present 1973 constitution.Until the 18thAmendment, the country has suffered a continuous onslaught of constitutional crisis. Under such circumstances, the inclusion of the 18thAmendment in Pakistan’s constitution was perceived as a breath of fresh air for national cohesion because of the added provincial autonomy given because of it. However, unlike any other human-made law, this Amendment is also criticized for its shortcomings. In the following lines, a brief overview of the Amendment is givenalong with the criticism on its contents by valid legal and constitutional experts. In the end, recommendationsfor the power-sharing mechanism and national harmony and are also given.
18th Amendment: Overview of the Structure
On 8th April 2010, the Pakistan Peoples Party-led National Assembly of Pakistan voted in favor of the 18thAmendment in the constitution with a clear majority. In this regard, following changes were made in the Constitution. The changes are mentioned below:
a. Restriction on Presidential Powers:
The doctrine of necessity was also used persistently by many governments in due course of time to get their rule legitimized by the highest law-making and judicial authorities in the country.
Under the 18thAmendment, President’s powers to unilaterally dissolve the legislature under the infamous Article 58-2 (b) were abolished. Moreover, Prime Minister was given more powers to decide about key matters while the President’s role in decision making was made consultative.
b. Increasing Authrotity of the Parliament:
The Prime Minister (PM), elected from the electoral college of the parliament’s democratically elected members, was made the chief executive of the country under this Amendment. Moreover, PM’s responsibility for updating the President regarding all key matters was also struck down. The provisions regarding the limit on Prime Minister serving more than two terms under article 91 were also removed.
c. Federal and Provincial Balance of Powers:
Many problems in past were stemmed from a lack of political powers and autonomy for provinces in the country. The 1973 constitution of Pakistan was more in favor of equilibrium and parity regarding power-sharing between the provinces. However, its preceding constitutions and subsequent amendment in it in the form of Legal Framework Order (LFO)significanlty tarnished this parity damaged cohesion between the federation and the provinces.
The 18th Amendment paved the way towards resolving certain risks between provinces and federation by a pragmatic devolution of authority and introducing strengthened role for the Council on Common Interests.In the past, many diverse subjects under the federal government were devolved to the provinces. The provinces were also given law-making authority vis-à-vis these devolved laws.
However, issues regarding provincial shares in the National Finance Commission (NFC) award were intensified after this Amendment. It was decided under this Amendment that the share of provinces will not be reduced below the previously agreed level between the federation and provinces.
d. Change of NWFP’s name:
The North West Province was given the new name of Khyber Pakhtunkhwa (KPK). However, there are certain reservations from the Hazara community regarding their demands of culturally and linguistically different presence in the Pashtun majority province.
Unresolved Gaps in the18th Amendment:
By the inclusion of the 18thAmendment in the constitution of Pakistan, more than 100 changes of various degrees were made part of its text in an attempt to restore the 1973 constitution. However, some discrepancies and shortcomings in the post-18th Amendment framework in the constitution certainly require redressal. In the following lines, detail of these lacunas and shortcomings is discussed in considerable length along with suitable recommendations concerning them:
Power Imbalance between Federation and Provinces:
As mentioned before, many important portfolios that belonged to the federation were devolved to all provincial governments. This devolution was necessary to strengthen the provinces. However, it created considerable impediments and confusion towards a uniform policy in certain important sectors like health, education, climate change, and tourism.
With varying standards andlevels of resources, policy-making, and legislation in different provinces, there is a need for a homogenous national policy. The integrated approach is important in certain sectors so that the federation can make sure that the backward provinces are given adequate opportunity to match pace with the economic and social stable provinces.For instance, the same syllabus for all educational institutions of Pakistan and an efficacious national health policy. Mounting concerns regarding climate change also require a coherent national policy.For this purpose, a consensus must be built between the representatives of allprovinces and federation for the greater good.
Vague Mechanism for Local Bodies:
The Local Government Ordinance2001 was lauded by many proponents ofthe devolution of power to local bodies. However, it was overlooked in the 18thamendment.Morever, the local bodies system provides little clarity regardingadministrative or financial authorities that will be delegated to them.
–The Writer is Research Assistant, Center for Global & Strategic Studies (CGSS), Islamabad
