April issue 2015

The 18th Constitutional Amendment in April 2010 attempted to redefine the uneasy federal-provincial relations through a negotiated legislative revolution. It was greeted with a certain measure of cautious skepticism then, but five years down the road the dream of devolution seems to be over.

The initial euphoria over the reforms gradually dissipated because Islamabad, predictably enough, opted to remain the traditional control freak and refused to devolve anything substantial to the provinces. It only threw some bones in their direction and kept the real meat — vital financial resources — to itself. Islamabad refused to proceed on joint and equal ownership of natural resources and, further, fix limits for the provinces to raise international and domestic loans for their future development projects. This, in essence, violated the sanctity of the written constitutional provisions.

Unfortunately, the provinces that had been yearning for increased autonomy since 1947 also proved to be quite lethargic in operationalising whatever was given to them. The 18th Amendment was a home-grown reforms agenda, but failed to find many indigenous advocates and enthusiasts who could help operationalise it at various tiers of governance. Many lame excuses were proffered about the lack of capacity at the lower tier — an argument that does not make sense, especially when the same federally recruited civil service runs the administration from the tehsils right up to the federal secretariat. Secondly, in the absence of a functional local government, with political, administrative and fiscal devolution as per the benchmarks elaborated in Article 140-A of the constitution, the Pakistani governance edifice remains feetless.

An analysis of the 18th Amendment indicates that it had introduced a new paradigm of institutionalised powers and made the Parliament and the provincial assemblies’ repositories of democratic powers. Besides mandating six-monthly review reports of the National Finance Commission (NFC) in the federal and provincial legislatures, instruments of functional federalism, like the Council of Common Interests (CCI) and the National Economic Council (NEC), were made responsible to the Parliament. The appointments in the superior judiciary, the Election Commission and caretaker governments were to be made via the Parliament. Later, the concept also figured in legislations pertaining to the National Commission on Human Rights and the National Commission on the Status of Women etc. The Amendment also expanded the scope of constitutionally guaranteed fundamental rights and offered the Right to Education, Information and Due Process for Fair Trial in the dispensation of justice. As of today, everyone has failed to decipher this changed paradigm. Powerful individuals still continue to overshadow the institutions.

The 18th Amendment envisaged proactive provinces with a protected share in the NFC, powers to raise loans within the limits prescribed by the NEC, joint and equal ownership in oil and gas, devolution of general sales tax on services and powers to design their own elected local governments. The provinces failed to import the multi-factor resource distribution formula of the 7th NFC Award in their respective provincial finance commissions to address issues of sub-regional inequalities and developmental disparities.

In our constitutional scheme, ‘residual powers’ rest with the provinces, which means that they are supposed to be much more alert, creative, innovative and proactive. The provincial zeal is often killed by raising odd questions about capacity in the domain of the executive. How is it that officers from the same services groups and in almost similar grades conveniently abandon capacity when they are posted in the provinces or districts? This reminds one of the pending agenda of civil services reforms, which were recommended by the Parliamentary Committee on Constitutional Reforms (PCCR) that crafted the 18th Amendment. The PCCR had made it abundantly clear that the new constitutional software of Pakistan will require a new kind of civil service and for that the federal and provincial public service commissions must sit together and figure out the way forward. Progress in this regard is simply zero.

The constitutional software of the 18th Amendment had attempted to programme the governance architecture in the language of cooperative federalism. But, unfortunately, the traditional war of turf and territory between the federal and provincial governments remains the order of the day.

The 18th Amendment had inserted an innovative entry in the Federal Legislative List-II titled, ‘Inter-provincial matters and co-ordination.’ However, this remains one of the less utilised constitutional provisions. Rather the post 18th Amendment trend is that of unilateral federal usurpation. The recent attempt to create a National Curriculum Council is a classic example of this. Ideally this clause should have given birth to a new culture of co-operative federalism requiring the federation and the provinces to synchronise themselves with the new realities.

After completion of the work of the constitutionally mandated Implementation Commission on June 30, 2011 that devolved to the provinces everything related to the erstwhile Concurrent List in the Constitution of 1973, there is no formal or functional mechanism for a meaningful transition of the same to the provinces. Any kind of communication link between the federation and the provinces on the pending issues of democratic devolution is also missing. This does not bode well for a federally organised country. The culture of democratic conflict resolution between the federation and provinces has weakened. Instead of resolving the old and lingering conflicts amicably, new ones are being added to the already long list. The latest battle over the route of the Gwadar-Kashghar Economic Corridor is a case in point.

Many members of civil society welcomed the 18th Amendment with varying degrees of both optimism and skepticism. In its coverage of the historic amendment, the media applied very narrow filters, instead of examining the potential of the amendment from the lens of provincial autonomy.

The 18th Amendment is not carved in stone. Democracy and constitutionalism are always viewed as a work in progress and any drawbacks can always be addressed by a new amendment. But when it comes to the devolution of power in Pakistan, there is no federal-provincial hand-holding mechanism. In fact, no one wants to let go of his turf in order to realise the dream of devolution — which is the cornerstone of democracy.

Constitutional Compliance Card

1. Constitutionally the National Economic Council (NEC) is supposed to meet at least twice a year to plan according to the Principles of Policy defined in the constitution of 1973. During 2010-2015, the NEC has met only once a year and has never discussed issues pertaining to federal economic planning. It approved the much touted Vision-2025 in a half-day meeting without any debate or discussion, along with Budget 2014-15.

2. According to the Federal Legislative List-Part II, ‘National Planning’ is the shared responsibility of the federation and the provinces via the Council of Common Interests (CCI). But even today, it is happening only through the centralised Planning Commission.

3. The 18th Amendment allows for the provinces to raise loans within the prescribed limits prescribed by the NEC. However, the NEC has failed to define and determine any limits.

4. On July 1, 2015, we will enter the 8th National Finance Commission. However, the conversations to negotiate the new NFC Award have yet to begin.

5. The 18th Amendment offered joint and equal ownership of oil and gas to the provinces. There has been no progress in this regard.

6. The Council of Common Interests (CCI), a forum of inter-governmental relations, is supposed to meet every quarter. It met on March 18, after 293 days. Post the 18th Amendment, the constitution empowers the provinces to requisition a meeting of the CCI. During the last five years, this option has been not invoked by any province.

7. The constitutional protection to the quota system in jobs under Article 27 exhausted on August 13, 2013. There is no serious effort to amend the said article or to do away with the quota system.

8. Constitutionally, the residual powers rest with the provinces but the federal government has created at least eight new ministries after the 18th Amendment to re-federalise education, health, climate change (formerly environment), food security (previously food and agriculture), cultural heritage and inter-faith harmony (previously minorities affair) etc.

9. The curriculum that was devolved to the province has been re-federalised by creating the National Curriculum Council on October 13, 2014 through an executive mechanism. The federal government ignored the constitutional path defined in Article 147 that allows the provinces to request the federation to do something on their behalf.

10. The federal government has failed to conduct the pending population census since 2008. It is vital for effective economic planning, fair resource distribution and equity in political wealth, besides accurate allocation of job quotas.

11. The federation and the provinces have failed to initiate any kind of civil service reforms, despite a categorical recommendation by the Parliamentary Committee on Constitutional Reforms in this regard.

12. Despite numerous deadlines given by the Supreme Court, the federation has failed to implement Article
140-A (creation of local governments) in the federal capital, 53 cantonments and three provinces, namely Punjab, Sindh and Khyber-Pakhtunkhwa in their respective jurisdictions.  Balochistan is the only positive exception.

This article was originally published in Newsline’s April  2015 issue.