Pending issues of the 18th Amendment

March 14, 2017

The Senate of Pakistan, the upper house of parliament, has recently completed its Parliamentary Year 2016-17. On this occasion, the Senate Secretariat has published a report titled “Report to the People of Pakistan”, along with other related publications. The timing of launching of these reports is quite significant, as the historic 18th Constitutional Amendment will also complete its 7 years next month i.e April 2017.

Being the upper house of parliament, the Senate represents all federating units and territories of the country and promotes a feeling of equality and harmony. The Senate in Pakistan, over the years, has emerged as an essential organ, and a stabilizing factor of the federation. The main objectives of the creation of the Senate of Pakistan was to give equal representation to all the federating units since the membership of the National Assembly is based on the population of each province.

During the process of the purification of te 1973 constitution in the year 2010, it was the Senate of Pakistan which mainly played a role and the 18th Constitutional Amendment was passed unanimously. The landmark amendment introduced changes to about 36 percent of the Constitution of Pakistan, as 102 out of 280 articles were amended, added, inserted, substituted or deleted. The 18th Constitutional Amendment has redefined the structural contours of the state through a paradigm shift from a heavily centralised to a predominately decentralised federation. It is a matter of great concern that significant federal institutions and implementation mechanisms for devolution at all levels of government are still undeveloped or non-existent.

It is matter of concern that even after a lapse of six years since the historic 18th Constitutional Amendment in 2010, its effective implementation is still in limbo. The real fruits of decentralisation, devolution of power and empowerment of people at grassroots level still could not be availed by Pakistani citizens. In spite of unanimous decisions of multi-party Constitutional Implementation Commission headed by Senator Mian Raza Rabbani constituted under Article 270 AA of the Constitution of the Pakistan, some of the critical issues still remain unresolved. These include: joint ownership of natural resources; establishment of Commission on Standards in Higher Education and Research; and policy regulation and supervisory control of Council of Common Interests (CCI) over the subjects enlisted in the Federal Legislative List Part II, such as railways, standards in higher education, federal regulatory bodies, census, electricity, railway, legal, medical and professions. The annual allocations for these subjects, which are under the domain of the CCI, are being made without review and approval of the CCI.

The CCI is as an important constitutional organ and a central political institution that regulates competence and settles disputes between federal government and provinces. But, unfortunately, the commitment to establish a permanent secretariat of the CCI has not yet been fulfilled. About 48 identified federal laws have still not been amended in line with the Constitution of Pakistan.

The Senate being the custodian of federalism in Pakistan needs to pay attention towards these pending critical issues immediately. The formation of a special committee on devolved subjects is an appreciable decision, which is being headed by Senator Mir Kabeer Ahmed who hails from Balochistan. According to the annual report by Senate of Pakistan, the committee deliberated over the pending issues of 18th Constitutional Amendment thoroughly in 18 meetings. According to the findings of the committee, no ministry/division/department is mandated to implement the important 18th Constitutional Amendment. Devolution Cell established in the Cabinet Division is only dealing with residual matters including absorption of the employees and other issues . The said cell is practically redundant at the moment.

According to the annual report of the Senate of Pakistan, the Parliamentary Year 2016-17 can be termed as year of nurturing and ensuring participatory democracy and federalism. During this parliamentary year, Senate met 17 times along with 3 joint sittings. The average attendance remained 67% during 113 working days. During the year, Senate as House of the Federation, tried to defend the provincial autonomy especially in case of placement of autonomous regulatory authorities under the line ministries. Chairman Senate Mian Raza Rabbani took notice of the executive order and gave a detailed ruling on 13th February 2017, terming the step to be against the spirit of participatory federalism and constitution. The very next day, on the 14th February 2017, the Lahore High Court also suspended executive order by the federal government.

There is also dire need to enhance the role and powers of Senate as per its resolution dated 13th February 2017 which seeks amendments to 11 articles of the Constitution dealing with the relationship between the centre and provinces in the light of spirit of 18th Constitutional Amendment to provide more autonomy to the federating units of Pakistan. Moreover, amendment to Article 159 (4) of 1973 Constitution, Senate can also have powers to resolve any dispute between the federal government and a province.

The decision of inclusion of six members from Senate in the Public Accounts Committee would be greatly helpful in strengthening the federation of Pakistan, as parliamentarians from smaller provinces would get more representation for oversight over financial matters of the federal government.

On the other hand, the Senate of Pakistan should also play its role towards implementation of the article 38(g) of the Constitution of Pakistan, which ensures the share of the provinces in all federal services, including federal autonomous bodies and corporations. It can also assist in addressing the grievances of smaller provinces regarding the China-Pakistan Economic Corridor and other development projects announced by federal government.

A proactive role of Senate can be greatly helpful in strengthening Pakistan as a federation through effective implementation of the 18th Constitutional Amendment and resolving related pending issues .