Revisiting the 18th Amendment

  • Did it really help?

All constitutions in Pakistan are based on Act of India 1935. A document by aliens to rule aliens on fault lines of ethnic divide. The basic fault lines were never corrected in the latter constitutions. The 18th Amendment ushered in major constitutional changes including taking away of the right of the president of Pakistan to dissolve the parliament. Out of 342 Members of National Assembly 292 voted in favour of the 18th Amendment. Well-intended but when translated into law will go down in history as one of the most devastating pieces of legislation made.

The Concurrent List was abolished to favour provincial autonomy. Being a federation, Pakistan has based its administration on many levels including the central or federal government and the provinces being units connected to the center. Then there are some countries that are based on one level of government alone, which is the center with no supporting units. In the latter form, the government is responsible for carrying out all functions. Opposed to this is the former type having both federal and provincial structures and both having the right to legislate concurrently. 16 departments were transferred from federal government to provincial governments under the 18th Amendment. The abolition weakened the federation without necessarily strengthening the provinces.

Education was one subject devolved at the provincial level. This was done without thinking through that a) whether the provinces are equipped in terms of teachers, infrastructure, educationalists, etc, to develop courses and other related necessary base needed to take advantage and implement this devolution and b) whether all provinces equally have the aforementioned basic variables in place failing which this inclusion would inevitably lead to unequal standard of education in different provinces leading to disadvantage of those provinces lagging behind in many fields CSS being only one of them.

Article 25A was inserted into the constitution: “Right to education: The state shall provide free and compulsory education to all children of the age of five to 16 years in such manner as may be determined by law.” The question stands vindicated by a report that states, “But two years on, the Punjab government has yet to introduce mechanisms for the implementation of the Article.” The direction to be given by a cohesive national, united ideology may/can be/has been compromised.

The 18th Amendment has offered nothing to the common man and neither has it managed to lead to a smoother interaction between the federal and provincial levels

The 18th Amendment created havoc in Pakistan by regulating health to provinces with no checking authority. The provinces are/were ill equipped to handle this critical area of social wellbeing and service to people. “The Drug Act of 1976, the law regulating pharmaceutical sector in the country, and the regulatory structures formed under it for registration, manufacturing, quality assurance of medicines and adjudication of contraventions, etc, also does not exist anymore under the 18th Amendment.”

“Pakistan’s markets sell fake pills, capsules, tablets, and syrups of all types, for every type of ailment,” according to a report by CNN.

When Yousuf Raza Gilani was the prime minister, the World Health Organisation (WHO) expressed concerns over the devolution of the ministry of health to the provinces via a letter.

“The implementation of the18th amendment required substantial changes in the existing legal, regulatory and policy frameworks on devolved and shared subjects. About 48 federal laws were identified which needed amendments to reflect the intent of the 18th amendment. Rules of Business at federal and provincial levels have been amended and a number of critical issues have been resolved. However, some issues still remain unsettled because of the lack of political will, policy disconnects and the absence of evidence-based strategies hampering the pace and process of transition management.” (Analysis: Five Years of 18th Constitutional Amendment: Federalists Imperatives On Public Policy and Planning (UNDP In Pakistan Volume 2 Issue)

When responsibilities were signed away by the federation without the infrastructure and mechanisms in place, the 18th compromised the national interests on many levels.

Provincial autonomy and inclusive-ness in governance should be the corner stone of a successful political dispensation. One can argue in favour of provincial autonomy however sans the mechanisms needed to make it work, minus the clarity in policies, route of operational funding, minus the skills in different fields needed to deliver, minus the skills needed, minus the will to bring it together at both provincial and federal levels, it is bound to fail.

It would have been better had the learned minds instead of getting rid of 16 departments in one go had transferred this in phases, smoothing out the teething problems systematically as these brilliant minds went along instead of creating a mess.

The 18th Amendment has offered nothing to the common man and neither has it managed to lead to a smoother interaction between the federal and provincial levels.

Unfortunately, should PTI wish to put the house in order on this front, it is faced with a strong opposition with the Senate seats being occupied for a while yet, even if a revisit is sought, one doubts anything much will come of it. Which pretty much leaves us with a constitution based on Act of India 1935, the Articles included and changed by Gen Zia and the 18th Amendment all joining together to create a recipe for disastrous governance.