Write a Short Note on the 18 Constitutional Amendment

PMS 2019 and PMS 2022 Solved Pakistan Affairs Past Papers | Note on the 18 Constitutional Amendment

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Question Breakdown

In this question, we need to write a note on the 18th Amendment, which should include a look at its features, and criticism on it.

Outline

1-Introduction

2-Features of 18^th Amendment

• ✓ Consolidating Parliamentary System of Government
• ✓ Restructuring Administrative Relations between the Centre and provinces
• ✓ Increasing Financial Autonomy of the Provinces
• ✓ Enhancing the role of Provincial Assemblies
• ✓ Adding Provisions for Local Government in the constitution
• ✓ Improving the Role of NEC
• ✓ Strengthening Council of Common Interests
• ✓ Bolstering Independence of Judiciary
• ✓ Incorporating Fundamental Human Rights into the constitutional text
• ✓ Removing Discretionary Powers of the President
• ✓ Empowering Women
• ✓ Dealing with Treason

3- Criticism

4- Conclusion

Answer to the Question

Introduction

The 18^th Amendment is a revolutionary constitutional development in the history of Pakistan. It has strengthened the federalism in Pakistan and given provinces significant autonomy in financial, legislative, and administrative realms, which they deserved and demanded for about 63 years. Additionally, it has restored parliamentary democracy, reinforced the democratic institutions, strengthened the judiciary, and provided fundamental human rights. In this question, some features of the 18^th amendment have been discussed, along with criticisms on a few of its articles.

Features of the 18^th Amendment

• Consolidating Parliamentary system of Government

18th Amendment strengthened the parliamentary system of government by revoking article 58 (2B), which gave the president the power to dissolve the National Assembly and hand it back to the prime minister. Amendments were made in Article 101 of the Constitution to restrict the president’s power to appoint governors, which are to be made by the president on the advice of the prime minister after the 18th Amendment. A substitution was made in article 59 concerning the senate, leading to equal representation from each province (23 seats). Article 91(4) of the 18th amendment ensured that cabinet members be responsible to both the National Assembly and the Senate. Amendment to article 89 guaranteed that no ordinance be passed in the absence of the Lower House or the Upper House. All these features greatly reinstated the federal parliamentary outlook of the 1973 constitution.

• Restructuring Administrative relations between the Centre and provinces

The 18^th Amendment has abolished the list in the Fourth Schedule, a.k.a Concurrent Legislative List, and has transferred 44 subjects (total 47 subjects) directly to provinces, including health, education, agriculture, environmental protection, and social welfare. Moreover, under article 172 (3) of the constitution, provinces and the federal government have been given a joint ownership over the natural resources.

• Increasing Financial Autonomy of Provinces

Provinces have been given the right to collect taxes on services under article 142 (c) in the 18^th amendment. Under the article 167 (4), the constitution allows the provincial governments to finance debts from domestic and international sources. Similarly, new article 160 3(A) was inserted to prevent the share of the provinces from reducing from the share enumerated in the previous award.

• Enhancing the role of Provincial Assemblies

Provinces have given the power to legislate on matters enlisted in the previously known Concurrent List under article 142 (c) of the constitution. Moreover, provinces also have a role to play in legislations pertaining to subjects mentioned in Federal Legislative List 2. It has given provinces more autonomy in managing their affairs without outside interference. Moreover, upon amending article 144, the provincial assemblies are given a right to amend or repeal any law made by the Parliament pertaining to their provinces, on subjects not enumerated in the Federal Legislative List.

• Adding Provisions for local government into the Constitution

Amending article 140 of the 1973 constitution, provinces were asked to establish local government bodies, and delegate administrative, political, and financial responsibilities to the elected representatives of the respective constituencies. The elections for the local government bodies are to be held by the Election Commission of Pakistan. This step is actually a move to improve governance in the country by involving local people in local development initiatives.

• Improving the Role of NEC

The role of NEC has been improved by amending article 156 to incorporate chief ministers, along with a member from each province nominated by a chief minister, giving provinces equal representation and increased say in policy making. The Council’s purpose is to formulate policies with regards to financial, legislative, social, and economic policies, keeping in view the overall condition of the country and ensuring policy formulation that promotes balanced development and regional equity.

• Strengthening Council of Common Interests

Under the 18^th amendment, article 157(3) was added to direct provinces or the Centre to move their concerns to CCI, so that they are addressed. A new clause under article 153(2) made the prime minister the chairman of the CCI and included the chief ministers of each province and three members from the federal government. Article 154(3) gave CCI a permanent secretariat. All this led to an increase in the role of CCI in solving inter-provincial and provincial-centre relations.

• Bolstering Independence of Judiciary

A new scheme for the appointment of judges was brought through Article 175 (A), in which appointment of judges was linked to judicial commission, comprising of Chief Justice of Pakistan, who is to head the judicial Commission; two senior judges of the Supreme Court of Pakistan, attorney general, one retired judge of Supreme Court, the Federal Law Minister, and a senior advocate. Moreover, under article 177, the president can also appoint judges following the procedure mentioned in aforementioned article. All this was done to prevent courts from giving legal immunity to military recklessness in the future.

• Incorporating Fundamental Human Rights into the constitutional text

Article 10 (A) was added to give the right of a free and fair trial. Article 19(A) was added to give the right to information, allowing media and the general public to question anyone on issues pertaining to public importance. Article 25 (A) was added to establish the state’s responsibility to provide free education to all till the age of 16. The revision of Article 17 ensures that the citizens of Pakistan can freely enter or establish any association. The amendment ensures that the basic rights of citizens are protected under the constitution.

Removing Discretionary Powers of the President

Article 232 was amended to curtail the president’s power to impose an emergency in a province by setting a condition of getting prior approval from that province’s legislature. Moreover, article 243(1) was brought to make clear that if the president wants to act unilaterally without the advice of the elected government, he has to get endorsement from both houses of Parliament within 10 days.

• Empowering Women

Through the 18th Amendment, women’s quotas were introduced. Five percent of tickets were given to women for direct participation in elections, and Article 34 guaranteed women’s participation in every field. Women were declared equal citizens and any discrimination based on gender was highly discouraged. All this provided an equal status to women in the polity.

• Dealing with Treason

Article 6 was introduced to deal with those who abrogate the constitution. In addition, no court can declare such self-proclaimed rescue efforts constitutional. Also, the abettors to such endeavor will be dealt with severely and harshly.

Criticism of 18^th Amendment

18^th Amendment is widely criticized for a few reasons. For instance:

• Article 160 3(A) bars the share of the provinces in the federal tax pool from decreasing from the share enumerated in the previous award, currently the previous award is the 7th NFC award giving provinces 57.5% share in the national tax pool. It is criticized, for it has left the federal government with meagre resources, hardly meeting the growing expenses of the federal government. There are calls for revising the NFC award and revoking this article to increase the share of the Centre in NFC award.
• Article 142, which gives provincial assemblies the powers to legislate on all matters pertaining to the former Concurrent List, is criticized for transforming Pakistan into a loose federation, also dubbed by a few as a confederation.
• Transferring 47 subjects to provinces is in fact not considered a wise decision by some analysts owing to the incapacity of the provinces to deal with these subjects effectively. Subjects like education, environment, and health have shown poor performance in some provinces since these subjects are transferred to provinces.
• Article 24 (A), which gives the right to education, and Article 140 (A), which mandates provinces to set up local government bodies, are criticized to be a theoretical milestone in the absence of any comprehensive procedure to implement them.

Conclusion

18^th Amendment is considered a radical step in Pakistan’s constitutional history, as it has amended more than 100 articles in the constitution. Though criticized for a few articles, it has totally transformed the constitutional outlook of the country by strengthening the parliamentary system of government, providing financial autonomy to provinces, enhancing the role of provincial assemblies, and mandating provinces to set up local government. In short, the 18th Amendment has fixed many errors, which were embedded in the constitution, some by default in the 1973 constitution, and some with the passage of earlier amendments in the military era of ruling.

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