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Old Saturday, June 25, 2011
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Post 18th Constitutional Amendment and Provincial Autonomy

18th Constitutional Amendment

Amendment XVIII (the Eighteenth Amendment) of the Constitution of Pakistan, was passed by the National Assembly of Pakistan on April 8, 2010, removing the power of the President of Pakistan to dissolve the Parliament unilaterally, turning Pakistan from a semi-presidential to a parliamentary republic, and renaming North-West Frontier Province to Khyber Pakhtunkhwa.[1] The package is expected to counter the sweeping powers amassed by the Presidency under former Presidents General Pervez Musharraf and General Muhammad Zia-ul-Haq and to ease political instability in Pakistan.[2][3] The 'historic' bill reverses many infringements on Constitution of Pakistan over several decades by its military rulers.[2] The amendment bill was passed by the Senate of Pakistan on April 15, 2010 and became an act of parliament when a smiling President Asif Ali Zardari put his signature on the bill on April 19, 2010. It was the first time in the history of Pakistan that a president relinquished a significant part of his powers willingly and transferred them to parliament and the office of the prime minister

Highlights of the 18th Constitutional Amendment:

 Amendment to Article 6 seeks to pre-empt military coups in future
 Article 58(2b) to be repealed, substituted with ‘Dissolution of National Assembly’
 President may dissolve NA in case no-confidence vote passed against PM
 Total strength of cabinet should not exceed 11% of total membership of parliament
 Governor should be a resident and registered voter of his/her province, he/she would be appointed by president on prime minister’s advice
 Provinces required by law to establish local government systems, devolve political, administrative and financial responsibility and authority to elected representatives
 PM to be chairperson of CCI, members to include CMs, 3 members from federal govt
 Amendment to Article 157 says federal government must consult provincial government before installing hydroelectric power stations in any province
 PM to forward three names for office of CEC, in consultation with opposition leader in National Assembly, to a parliamentary committee for confirmation
 Committee proposes insertion of Article 175(a) to deal with appointment of judges to Supreme Court, high courts, Federal Shariat Court
 Committee proposes substitution of Article 243, says federal government ‘shall have control and command of armed forces, supreme command of armed forces shall [rest with] … president
 President to appoint Joint Chiefs of Staff Committee chairman, chief of army staff, chief of naval staff, chief of air staff
 NWFP will be renamed ‘Khyber-Pakhtoonkhawah’
 State will provide free, compulsory education to children aged between 5 and 16 years
 Amendments to Clause 1 seek substitution of ‘Baluchistan’ with ‘Balochistan’, ‘Sind’ with ‘Sindh’
 Insertion of clause sought to bar persons acquiring citizenship of foreign country from contesting elections to parliament
 All elections under constitution, other than those of PM and CM, to be by secret ballot.

18th Amendment impact:

Pakistan’s parliament has passed the 18th Amendment’s that, among other changes, gives the provincial governments greater autonomy under the constitution by abolishing the concurrent list and other related provisions. The full impact of the amendment’s many changes has yet to be fully analyzed and deliberated by key stakeholders.

The 18th amendment eliminates the “Concurrent List,” i.e. the enumeration of areas where both federal and provincial governments may legislate but federal law prevails. Laws governing marriage, contracts, firearms possession, labor, educational curriculums, environmental pollution, bankruptcy, and in 40 other diverse areas the provinces would have exclusive jurisdiction and each provincial assembly will be responsible for drafting its own laws on the issues. The 18th constitutional Amendment potentially impacts the mandate of several Federal Ministries and by implication increases the roles and responsibilities of the related institutions and administrative structures at the provincial level.

Another important but under-reported change now specifies that future National Finance Commission agreements—which set the distribution of national revenues between the central government and the provinces—cannot reduce the provinces’ share beyond that given in the previous agreement (Article 160). Provincial governments also now have greater authority to raise domestic and international loans and give guarantees on the security of Provincial Consolidated Fund. (Source: United Nations Development Programme)

18th Amendment And Provincial Autonomy?

The people of small provinces were once again cheated away and the promise of provincial autonomy was largely limited to cosmetic changes and use of buzz words such as abolition of the concurrent legislative list containing subjects where the Federal government and the four provincial had shared jurisdiction prior to the 18th amendment. Indeed, it was the long standing demand of provinces to do away with concurrent list and restore sole provincial jurisdiction as provinces had enjoyed under British before Pakistan was created. What actually has happened under the 18th amendment that the central government has assumed the jurisdiction over most important subjects and let provinces have jurisdiction over less important subjects. On top of this, a provision (Article 143) that before 18th amendment allowed the federal government to enact laws only in the subjects covered under federal legislative and concurrent legislative list have been extended giving authority to the Federal legislature to void any acts passed by a Provincial Assembly. This means that an act passed by a provincial assembly in a subject area that is totally under the jurisdiction of the province can be voided by an act passed by the Federal legislature with simple majority. Before 18th amendment such an act would have required a constitutional amendment. In a country such as Pakistan, where one province had more members in the National Assembly than the combined total of other provinces, this change gives the largest province of Pakistan to override any provincial laws with ease as it could easily muster simple majority from that province alone.

Where 18th Amendment failed to meet expectations of small provinces?

1. Failed to reaffirm the principles of 1940 Resolution principles namely the promises of provincial “autonomy” and “sovereignty”.

2. Failed to include Baluchi, Pashto, Punjabi, and Sindhi as national languages of Pakistan.

3. Article: 39 – Participation of people in Armed Forces – Failed to include a provision that the military will strive to build a truly national organization that is ethnically-balanced and representative of all minorities of Pakistan. A provision should have been made to achieve this balance within five to ten years.

4. Articles: 59 and 73 – Senate Composition and money powers: Failed to change composition of Senate so the exactly 25 members from each province will be elected to Senate in a national vote and would hold a veto over any laws passed by the National Assembly.

5. Article 143: Inconsistency between Federal and Provincial laws
6. Now even a corrupt, ineligible and incompetent politician, as party head, would be able to manipulate the whole political system in the country. This was achieved by making some very disturbing changes in article 63. This article deals with the eligibility of political contesters in general elections. This amendment has ruined the idea of rule of law and justice. Amendments made in article 63 would enable every convicted criminal to be part of the parliament after five years of his release from jail irrespective of the fact why that person was convicted.

7. Article 156 – National Economic Council – This article had a provision that “the President shall nominate one member from each Province on the recommendation of the Government of that Province.” The 18th amendment has removed the words “on the recommendation of the Government of that Province.” has been REMOVED as Prime Minister can now appoint 4 other members of the council. The implication of this change is that Federal Government will solely determine who will be the members of the National Economic Council thereby further diminishing the participation of provincial governments in how national economics is handled – this is another serious attack against provincial autonomy.
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