Daily Times

Punjab used to be the champion of hoarding all powers in the centre, but a positive role played by PML-N leaders in agreeing, first to the changes in the criteria for distribution of fiscal resources in the NFC and subsequently agreeing to the expansion of provincial autonomy in the Eighteenth Amendment has to be noted. It shows that Punjab’s bourgeois leadership resisted the pressure of the centrist establishment against devolution of powers to the provinces.

The transfer of subjects listed in the concurrent list of the constitution to the provinces was a long-pending demand of the smaller provinces. The Eighteenth Amendment fulfilled this demand.

Some of the important subjects were transferred from the Federal Legislative List Part 1 to List 2, which was a good omen. This included the provinces in decision making on the subjects which were earlier decided unilaterally by the Centre because they were in List 1. But a close look at the concurrent list of subjects show that the provinces were not be enriched by this change. Most of the 47 subjects mentioned in the list brought no financial gain to the provinces. However, the transfer of the concurrent list subjects to the provinces added to their responsibilities and financial liabilities. It was hoped by the provinces that increased allocations under the NFC Award 2009 would help in meeting this expenditure.

Provinces wanted control over their natural resources and fiscal authority on such taxes, which have buoyancy and elasticity. The NFC Award dealt with some of these issues. But the most important victory of the provinces was that their demand to have control over their natural resources including oil & gas was met half-way in the Eighteenth Amendment. Provinces were supposed to share control over these natural resources and the territorial waters adjacent to them ‘jointly and equally’ with the Center. However, this is yet to be implemented.

The transfer of subjects listed in the concurrent list of the constitution to the provinces was a long-pending demand of the smaller provinces. The 18th Amendment fulfilled this demand

For instance, the law provided that the provinces producing oil and gas would have the first right to use it but this is not being done. Otherwise, Balochistan and Sindh — which have vast resources of natural gas — would not be begging for a larger share in the country’s gas resources.

Agreement to rename NWFP as Khyber Pakhtunkhwa settled an old demand of the 73% people living there. It gave a great psychological comfort to these people and cemented their bond with the rest of Pakistan.

One of the most important amendments to the constitution was in respect of appointment of judges to the Supreme Court and the provincial High Courts.

Though the constitution said that the President has to appoint the judges “after consultation with the CJP,’ the factual position is otherwise. The word ‘consultation’ here has been interpreted by the Supreme Court of Pakistan in the Al-Jihad case as such, that, the name recommended by the CJP is binding on the President. What else can you expect if given a chance to decide about one’s own jurisdiction and power? This was however done on the principle that the independence of judiciary and separation of judiciary from the executive has to be maintained. So unlike India where a collegium of five judges of the Supreme Court decide about appointment of a new judge, in Pakistan it’s one man’s discretion.

In spite of Article 6 of the constitution which says that “any person who abrogates or subverts, or suspends or holds in abeyance … the constitution by use of force … or any other unconstitutional means shall be guilty of high treason,” twice the military has over-thrown elected governments and violated the constitution. And every time it was validated by the Supreme Court of Pakistan. To check the abetting judiciary, the Eighteenth Amendment added a clause 2(A) which says: “An act of high treason mentioned in clause (1) or clause (2) shall not be validated by any court including the Supreme Court and High Court.”

The National Security Council, which had a strong armed forces presence, was also packed-up by the Eighteenth Amendment. It was created on the army’s demand.

The Eighteenth Amendment is also a milestone as it included a number of human rights articles in the constitution i.e.: 4 minority seats were added to the strength of the Senate; it guaranteed access to information to citizens in all public matters; right to free compulsory education to all children of the ages five to sixteen.

Not used to the smooth evolution of a democratic process, people still ask how the establishment was in a benevolent mood and allowed its favourite amendments to be deleted from the constitution. Analysts believe that the policy of reconciliation and consequent consensus among the political parties mellowed the hawks in the establishment. The army is too involved in fighting the terrorist’s threat to the security of Pakistan to dictate the politicians whose support it needs in the on-going war.

The Eighteenth Amendment was indeed another win of democracy in Pakistan, and a defeat of the advocates of the benevolent dictatorship in the country. Any attempt to roll back the 18th amendment and the gains of the 7th NFC Award would be dangerous for the federation.

The writer is the author of What’s wrong with Pakistan? And can be reached at ayazbabar@gmail.com

Published in Daily Times, November  12^th 2018.