Begrudging the 18th Amendment

Daily: Daily Times
Date: 08.05.20
(Under a pseudonym: Dr Hamid Ashraf)

In 2010, through the Eighteenth Constitutional Amendment, all the four provinces entombed
the de facto unitary form of government and actualized the dream of provincial autonomy
promised to them while framing the 1973 Constitution. Ironically, after a decade, the issue is
back to square one: the call is that the amendment has to be reversed, fully or partly. The
pretext is that the Centre feels too squeezed financially to run the federal affairs.

The effort to erode the Eighteenth Amendment is longstanding. For the past few years, a
concerted effort has been underway to whip up the circumstances against the amendment.
The first ruse used was the authority of international conventions. In March 2018, under ex-
Chief Justice Mian Saqib Nisar, a three-member bench of the Supreme Court (SC) of
Pakistan upheld the Industrial Relations Act of 2012 strengthening the Centre and deflating
provincial autonomy. The verdict read that matters germane to trade unions and labour
disputes fell under the purview of the federation for their being protected under
international conventions. It simply means that any issue related to international
conventions can be pulled out of the provincial purview and dropped in the federation. It is
as if the international convention delegated authority to the federation to take charge of the
matter.  

The second ruse deployed was more direct and scathing: the parliament did not debate the
Eighteenth Amendment. In January 2019, ex-Chief Justice Mian Saqib Nisar raised the
controversy by saying that the Upper and Lower Houses of Parliament did not hold any
debate before passing the Eighteenth Amendment related to the devolution of powers to
the provinces, particularly those which were related to health and education sectors and
hence the SC would interpret it. That is, the amendment had not passed a given test of
legitimacy and hence it could be disrespected. Resultantly, a bench of the SC wrested the
control of four hospitals from Sindh and handed it over to the federation. The verdict
mentioned that it was justified to do so because the Eighteenth Amendment had not
prevented the federal government from opening healthcare facilities in any province. The
verdict meant three things. First, the verdict empowered the federal government to
establish a parallel healthcare system in the provinces. Second, the verdict interpreted the
amendment as if it were law which, if it did not prohibit, meant it permitted. Third, the verdict
discounted the significance of the term provincial autonomy. The point is simple: If the
federation can intervene to establish its own institutions in the provinces without their
permission, the agency of provincial autonomy stands dissolved.  

Both incidents indicate that in principle the SC is ready to either strike down the Eighteenth
Amendment or interpret it in a way that permits the federation to have more powers than it
is enjoying presently. Against this background, the major vulnerable area to assail is the
National Finance Commission (NFC) Award.

Protected under the Eighteenth Amendment, the Seventh NFC Award of 2009 reduced the
share of the federation from 52 to 44 percent and increased the share of the provinces
from 48 to 56 percent of the divisible pool. In subsequent years, the share of the provinces
could not be reduced.  

Now, the Centre has to perform five main functions: service the foreign debt, meet the
defence expenditures, provide funds to Gilgit-Baltistan and Azad Jammu and Kashmir, run
the federal ministries falling under the Federal List and meet the expenses of the federal
capital. The major chunk of share is consumed by debt servicing and defence
expenditures. At the core of the effort for reviewing the Eighteenth Amendment is not the
issue of health or education but the reduced amount of funds available to the federation to
deliver on its responsibilities.  

The problem with the federation are two. First, for sixty-three years (from 1947 to 2010), it
kept burgeoning to oversize itself. Islamabad is no more a capital city. It is a province. The
bureaucrats are reluctant to leave Islamabad and serve the provinces. Life style and living
standards have taken precedence over serving one’s duty outside Islamabad. Second, for
sixty-three years, things settled for a centralized authority: the unity of command. The
federal government could run the country easily from Islamabad. Similarly, a martial law
administrator could also control the country from Islamabad by selectively abrogating the
constitution through a legal framework order. Under the Eighteenth Amendment, it is not
only the bulge of Article 6 that acts as a bulwark against the escapade of a military dictator,
but it is also the negation of a centralized authority to run the country that discourages the
feat of martial law.  

If the federal government devalues Pakistan’s currency against the US dollar, the foreign
debt scales up automatically. The devaluation done by the incumbent government has
created more problems than solutions. It means that the federation has to take careful,
calculated steps on the financial ground before it trips over an obstacle.  

Before May 1998, the federal governments kept on convincing the people that an increase
in defence budget was imperative to balance the belligerent posture of India. Pakistan
conducted the nuclear tests of May 1998 under the rubric of having a deterrence-based
nuclear doctrine. The extension of the doctrine was to have a small, smart army with
reduced defence expenditures. The justification given by defence analysts was that the
nuclear deterrence had ruled out a war with India. The Kargil war of 1999 was cited as an
example. It seems that, in 2020, the narrative has expired. Now, the argument thrown is that
Pakistan has to ramp up its defence expenditures yearly because India does so. It means
that there is no end to the arms race between India and Pakistan whether or not Pakistan
sustains the financial pressure.  

The over-grown civic sense in people for their benefit, especially after the 2014 sit-in, has
left little room for extracting expenditures from public welfare. Provincial infrastructure has
to be developed instead of denying provinces their financial share. The Centre has to
content with whatever is available under the Eighteenth Amendment.

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