CSS Solved Pakistan Affairs Past Papers | Discuss The Federal Structure of the 1973 Constitution Of Pakistan after the 18th Amendment. Why did criticism of the 18th Amendment Start Recently?
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In this question, the examiner has asked you two things: first, about the status of the 1973 constitution of Pakistan after the 18th Amendment of 2010 and, second, regarding the recent wave of criticism against the Amendment. So, first, you need to briefly introduce the issues of federalism in Pakistan since its inception that refrained the country from becoming a true federal state. Then, talk about the 18th Amendment and how it tried to restore the federal character of the constitution. Then, after some 3 to 4 valid points, write about the recent criticism against the Amendment encompassing authentic reasons. Finally, end your answer with a critical analysis and a conclusion. Please remember that the following answer is solved, considering the whole scenario. Thus, it contains all the relevant information. However, as far as the answer in the paper is concerned, limit yourself to 3 to 4 main arguments against each part of the question.
- As a multi-ethnic and multi-linguistic country, federalism is Pakistan’s best form of government.
- Unfortunately, owing to various factors, including the legacy of British imperialism, delay in the constitution-making process, and the continuous toppling of the governments by martial law, the federal structure in Pakistan did not strengthen.
- However, the 18th Amendment in the constitution of Pakistan proved to be a masterpiece in restoring the federal character of the constitution.
- Nevertheless, in recent times, multiple criticisms have arisen against the Amendment, such as the absence of devolution of power to local governments, lack of uniformity in education and health standards, and limited fiscal space for the Federal Government.
2. What is Federalism?
3. Federalism in Pakistan before the Amendment
4. Overview of the 18th Amendment
5. Change in Federal Structure of 1973 Constitution after 18th Amendment
5.1. Creation of boundaries in Civil-military Relations
5.2. Transformation of Centre-Province Relations
5.3. Limitation on Presidential Powers
5.4. Enhancement of the role of Parliament and the Prime Minister
5.5. Increase in the share of provinces regarding the National Resources
6. Criticism of 18th Amendment
6.1. Lack of Devolution of Power to local governments
6.2. No real check on Military powers
6.3. No actual devolution of powers to the provinces occurred
6.4. Lack of uniformity in Education and Health Standards
6.5. Limited Financial Space for the Federal Government
6.6. Lack of strengthening of unity
7. Critical Analysis
Answer to the Question
Federalism is Pakistan’s best form of government, being a multi-ethnic and multi-linguistic country. The efficient sharing of power between national and state governments results in a harmonious connection where the debate of autonomy vs integration is better managed, resulting in unity in diversity. Unfortunately, owing to various factors, including the legacy of British imperialism, delay in the constitution-making process, and the continuous toppling of the governments by martial law, the federal structure in Pakistan did not strengthen. Time and again, the country faced various threats to its administrative and political stability. Moreover, the constitution of 1973 was amended by military leaders to enhance their own power in contrast to the spirit of federalism through the 8th and 17th Amendments. However, the 18th Amendment in the constitution of Pakistan proved to be a masterpiece in restoring the federal character of the constitution. According to its chief architect Raza Rabbani, the 18th Amendment is “the most significant restructuring process since independence.” The Amendment created the necessary boundaries in Civil-military relations, transformed the Centre-Province relations, limited the presidential powers, and restored the role of Parliament and the Prime Minister. Moreover, it devolved various powers to provinces to enhance their autonomy, thus, strengthening the federal structure of the 1973 constitution. Nonetheless, in recent times multiple criticisms have arisen against the Amendment, such as lack of devolution of power to local governments, no real check on military powers, lack of uniformity in education and health standards, and limited fiscal space for the Federal Government. So, this has again initiated the debate to amend the 18th Amendment. Nevertheless, it is important to take the necessary steps to implement the Amendment in its true spirit. Still, if ambiguities arise, Amendment can be amended in favour of national interests rather than individual ones, as an efficient constitution is a living document that can alter the changing circumstances and needs of the time.
What is Federalism?
Federalism is a form of government adopted to organize and govern the relationship between federating units and the centre. It is a device to harmonize the feelings of autonomy in the federating units without affecting the unity of the state. Here, national affairs are managed by the centre while the provincial governments administer the matters of local interests. As Dicey aptly said, federalism is “a political contrivance intended to reconcile national unity with the maintenance of state rights.” And a state’s constitution reconciles these arrangements. However, for a federation to be successful, there must be complete equality among the component units. In the absence of this factor, a successful federation can never operate. Hence, federalism is a subtle compromise between unity and autonomy, which requires a mature political ability and legalism for continuity and success.
Federalism in Pakistan before the Amendment
Throughout its constitutional history, the federation of Pakistan has remained under constant hurdles and chaos. First, the British administered the areas that constituted Pakistan under varying administrative settings. For instance, the province of Balochistan remained under the authority of tribal chiefs after the British signed the Sandeman treaty with them. Thus, the province did not experience the constitutional apparatus. In contrast, the province of Punjab was under the authoritative control of the British, where landlords were given complete protection as long as they remained loyal to the government. Moreover, Pakistan has remained a country having diverse geography with a distance of more than 1000 miles between its two wings; East and West Pakistan. Thus, the diverse and difficult legacy had implications for the process of constitution-making and federalism in the post-independence era.
“The breakup of Pakistan resulted from the autocratic policies of its state managers rather than the inherent difficulties involved in welding together linguistically and culturally diverse constituent units.”Ayesha Jalal (The Struggle for Pakistan: A Muslim Homeland and Global Politics)
Second, Pakistan adopted the Indian Act of 1935 as its constitution with minimal changes. Notably, the British created a federal system where most of the power lay with the Centre, not the federating units. Even though some changes were made in the Act, the strong position of the head of the state against the provinces resulted in a quasi-federal character. Third, the delay in the constitution-making process further enhanced the issues in the federal system of government in the country. Moreover, martial law administrators’ continuous toppling of the governments did not allow the federation to reach its true essence. Last but not least, the 8th and 17th Amendments adopted by the military dictators for their vested interests opened illegal doors against the democratic development of the federation.
Overview of the 18th Amendment
Pakistan has a parliamentary form of government. However, due to the 8th and 17th Amendments in the constitution of 1973 by the military dictators, the form of government lost its essence. As in the parliamentary form of government, President is the titular head, whereas the true authority lies with the Prime Minister, but the amendments as mentioned earlier tilted the balance of power in favour of the President. In that case, the Presidents were the military dictators who gained extra authority over the state’s administrative affairs. Nevertheless, the 18th Amendment in the Constitution of Pakistan changed the situation for the better and tried to restore the original spirit of the federal form of constitution. The major changes brought forward by the 18th Amendment are discussed in the following paragraphs.
Changes in Federal Structure of 1973 Constitution after 18th Amendment
Creation of boundaries in Civil-military Relations
Article 6 of the constitution was amended to enhance the sphere of the definition of “high treason” to deter any future abrogation of the constitution. Accordingly, keeping the constitution in abeyance or attempting to do so shall be regarded as ‘high treason. And such an Act would not be validated by any court, whether High Court or the Supreme Court. Moreover, the 17th Amendment was repealed, eliminating the Legal Framework Order from the constitution. Thus, a limit was placed on the powers of the President, and the process of judicial appointments was also altered, returning Pakistan to a parliamentary system of government.
“Any person who abrogates or attempts or conspires to abrogate subverts or attempts or conspires to subvert the Constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason.”(Article 6, 1973 Constitution)
Transformation of Centre-Province Relations
The concurrent list, which enumerates the matters concerning which both parliament and a State Legislature may make laws, was abolished in the 18th Amendment, transferring all the subjects to the provincial legislature. This also enhanced the administrative autonomy of the provinces. For example, the provinces will govern laws regarding contracts, labour, educational curriculum, trade unions, management of infectious diseases and other areas. Moreover, according to Article 160, the provinces’ share in National Finance Commission Award cannot be reduced beyond the one given in the previous year. Therefore, the powers of regions increased compared to that of the Federal government.
Limits on Presidential Powers
Various articles in the 18th Amendment reduced the powers of the President to strengthen the federation. First, article 48 gives power to Prime Minister, not President, to submit any matter of national importance to a joint sitting of the Majlis-e-Shoora (Parliament) as a referendum in the form of a question that is capable of being answered by either “Yes” or “No”. Second, the controversial Article 58-2 (b), which provided President with the power to dissolve the parliament, has been removed. Third, Article 75 limits the powers of the President to bypass the normal legislative procedure by decreasing the time to consider the bills passed by parliament to 10 days as compared to 30 days previously. Fourth, according to Article 224, when the parliament is dismissed President has to consult the outgoing prime minister and opposition leader on presidential appointments of the caretaker government.
Enhanced role for Parliament and the Prime Minister
18th Amendment also greatly enhanced the authority of the parliament and the prime minister. Articles 90 and 99 of the constitution now establish the Prime Minister and his/her ministers as the executive government – The federal government – compared to the position of the President before. Similarly, article 91 removes the limit on the Prime minister serving more than two terms. And article 101 requires the President to appoint the provinces’ governors on the Prime Minister’s advice. Moreover, article 243 makes it binding on the President to consult the Prime Minister regarding the appointments of military service chiefs.
Increase in the Share of Provinces regarding the National Resources
Another significant contribution of the 18th Amendment was recognising provinces as rightful beneficiaries of their natural resources in association with the Federal Government. An amendment in Article 172 limited the Federal Government’s authority over the lands, minerals and other things of value within the continental shelf of Pakistan, which was given to provinces to explore, develop and exploit. A new clause was added to Article 161 so that the net proceeds of the federal excise duty on oil charges went entirely to the provinces rather than forming part of the Federal Consolidated Fund. In addition, subject to the supervision of the National Economic Council, provinces are now allowed to raise loans and provide guarantees under Article 167.
In sum, the earlier articles have tried to strengthen the country’s federal structure by imparting more powers and autonomy to the provinces. However, there are some concerns regarding the Amendment, which are explained below.
Criticism of 18th Amendment
Lack of Devolution of Power to the Local Governments
Even though the 1973 constitution and 18th Amendment require the devolution of power from provincial governments to local governments, the task has remained unfulfilled. For instance, local governments could not respond to the devastating floods that swept Karachi, increasing the chances of a governance crisis. Similarly, the 18th Amendment did not clarify the administrative and financial authorities delegated to the local governments. Therefore, the 18th Amendment has not succeeded in practically devolving power to the grass root level.
No real check on Military powers
The 18th Amendment has not resolved the political problems of the country. Still, the civilian government continues to hold limited powers of real oversight on the budgets or policies of the military, which retains a firm grasp on Pakistan’s foreign and security policy and a large political and economic presence domestically.
No Actual Devolution of Powers to the Provinces occurred.
The devolution of authorities to the provinces did not happen in the true sense. The functions previously performed by the federal ministries were devolved. However, only one-third of the functions were given to provinces rest of the functions were allocated to the new federal ministries created in 2011. According to Sage publications, out of 301 functions, 207 were devolved to the new ministries, and only 94 were given to the provinces, making it only one-third of the functions. For example, being a residual matter, agriculture fell in the domain of provinces. Nevertheless, the Ministry of Food and Agriculture worked at the Federal level. After the 18th Amendment, a new ministry was named the Ministry of National Food Security and Research. So, out of 39 functions of the previous ministry, only 11 were devolved to the provinces, and 26 were given to the new ministry, whereas two functions were deleted. This shows how true devolution of power to the provinces did not occur after the Amendment.
Lack of Uniformity in Education and Health standards
One recent criticism against the Amendment is that giving education and health to the provinces has made it impossible to implement uniform curriculum and standards of education and health in the country. For instance, the implementation of the Single National Curriculum introduced by the Federal government in August 2021 was rejected by the provincial government of Sindh. Provincial Education Minister Sardar Shah said:
“We have already expressed our reservations on the SNC. However, after the 18th Amendment, education is a provincial subject. Therefore, provinces have the right to develop their own curriculum.”
Limited Financial Space for the Federal Government
Critics of the 18th Amendment assert that transferring a large part of fiscal resources to the provinces confines the federal government’s financial space responsible for defence expenditure and debt servicing, constituting the biggest portion of the budget.
Lack of strengthening of unity
It was foretold before the 18th Amendment that it would help strengthen the country’s federation. However, no real unity developed between the provinces and the federal government. Even the Ministry of Inter-Provincial Liaison and the Council of Common Interests was set up to oversee the transfer of powers from the federation to the provinces. Still, successive governments have made these two institutions useless. For instance, the case of the construction of Kalabagh Dam has not been resolved by the CCI due to the conflictual opinions of the provincial governments compared to the Federal government.
Hence, it can be said that despite various positive impacts of the 18th Amendment, multiple shortcomings still exist in its provisions and implementation.
In a critical analysis, although the 18th Amendment created the required constitutional framework for the administrative and fiscal devolution of responsibility from the federation to the provinces, various challenges remain in its implementation. First, the federal government was reluctant to let go of the responsibility as it meant losing control over the human, physical and fiscal resources. So, various federal ministries were renamed to match the 18th Amendment. For instance, the Ministry of Environment became the Ministry of Climate Change, and the Ministry of Labour and Manpower became the Ministry of Overseas Pakistanis & Human Resource Development. Thus, the Central Government was quick to make innovative interpretations of various constitutional provisions to develop justifications for keeping at least the more important functions in the Federal Government. Second, there are fears about the capacity of Provincial Governments to perform various devolved functions effectively. Even Provincial Governments, specifically Balochistan, appreciated this and were, in some cases, pleased to let the Federal Government carry on performing functions as before. Therefore, even though the 18th Amendment was made in the best interests of all the provinces, Pakistan’s federation became the victim of criticism time and again.
From the above discussion, it is clear that the 18th Amendment was a milestone in the constitutional history of Pakistan. It restored the constitution’s parliamentary character and significantly strengthened various institutions. Its most important contribution was to strengthen the provinces by abolishing the Concurrent Legislative List, reducing the powers of provincial governors and enhancing the powers of the Senate. Similarly, the devolution of functions to provinces and giving them a bigger role in running federal affairs was certainly a major step in adjusting the historical imbalance in Centre–province relations. However, the Amendment has remained the target of continuous criticism, sometimes because of the lack of proper implementation and, at other times, due to failure in solving the real political issues of Pakistan. Nevertheless, the need of the time is to implement the Amendment in letter and spirit to strengthen the federation and create unity in diversity. Moreover, the constitution of any country is a living document which keeps on changing according to the changing circumstances and needs. Thus, amending the 18th Amendment can be an option if the need arises: being open and welcoming to new developments is the need of the hour.
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