The reason why debate on 18th Amendment refuses to die

The 18th Amendment became part of Pakistan’s constitution about ten years ago when President Asif Ali Zardari signed it on 19th April 2010.  The debate on its merits and demerits, however, continues to rage on even today. Why?

The 18th Amendment was the biggest constitutional exercise in the history of Pakistan since the framing of the supreme law of the land in 1973. It impacted almost 100 articles, which constitute about one-third of the document.

Provincial autonomy had been a hugely contentious issue in Pakistan’s constitutional history. The balance of center-province powers was among the two most divisive issues that dragged the constitution-making process for about nine years, the other one being the place of Islam in the polity.  The question of provincial rights, however, was more responsible for the scission of the country’s eastern wing in 1971 than anything else.

The 1973 constitution brought some temporary closure to this sensitive issue. Political parties holding diverse views on the subject apparently agreed to the quantum of provincial autonomy prescribed in the document since no one wanted to create another crisis in the form of a constitutional deadlock soon after the tragic events of 1971. There was also a belief in many circles that the accord on the constitution was made possible because of an informal agreement among the country’s political leadership to abolish the Concurrent Legislative List in the constitution after ten years. There is, however, no credible evidence for such an informal accord.

The lack of sufficient debate does not make the 18th Amendment any less legitimate in a strictly legal sense. The lesson learned from its passage is that any further amendment in the constitution, including modifying any aspect of the 18th Amendment, must be undertaken only after achieving a consensus through an open debate both in and outside parliament.

Ahmed Bilal Mehboob

Although the 18th Amendment dealt with nine broad areas of Pakistan's constitutional arrangement, provincial autonomy was the centerpiece of the legislation. It successfully abolished the Concurrent Legislative List, transferred most of the subjects therein to the provincial domain and significantly expanded the sphere of provincial autonomy. While financial allocations from the federal divisible pool are considered a subject to be settled in the National Finance Commission (NFC) award every five years, the 18th Amendment inserted a new clause 3A in Article 160 which allows only upward revision in the provincial share in succeeding awards. This clause has apparently become a thorny issue between the federal and provincial administrations. Even a cursory study of the terms of reference for the 10th NFC recently announced by the president indicates that the federal government is keen to find a way around the roadblock of Article 160 (3A).

Despite the fact that the 18th Amendment dealt with such explosive issues such as the provincial autonomy, a lack of open debate both inside and outside parliament is astonishing. It is true that the Parliamentary Committee on Constitutional Reforms (PCCR) headed by Senator Raza Rabbani did a wonderful job by holding 77 meetings over 10 months, spending 385 hours in deliberation, and reviewing 982 public proposals invited by the committee through newspaper advertisements, but all these in-camera proceedings were not a substitute for the open debate which is the essence of a democratic process leading to a durable consensus. The PCCR had decided early on that committee proceedings would remain strictly confidential. The confidentiality was so effectively enforced that some legislators and party office holders outside the PCCR complained about the lack of awareness of the committee deliberations when the bill was moved in parliament. The debate in the National Assembly and the Senate lasted for just two and four days, respectively. It is not that the 18th Amendment bill was such a complete consensus that it did not require extensive debate: There were some eighteen notes of reiteration or dissent written by 15 out of 26 members of the committee appended with the PCCR Report.

In contrast to the lack of open debate on the 18th Amendment, the country’s national parliament had debated the 1973 Constitution Bill for more than two months after the committee constituted for the purpose completed its eight-month-long deliberations. The parliamentary debate on the 2nd Constitutional Amendment (declaring Ahmadis non-Muslims) continued for over three months. The 8th Amendment (indemnifying actions of General Ziaul Haq’s martial law) was debated for 41 days. It is because of the open and detailed debate on these legislations that there was hardly any significant controversy after their passage. The debate on the 18th Amendment, to the contrary, continues even ten years after its passage and seems to be gaining momentum with time primarily because it was not openly and sufficiently debated before its passage.

The lack of sufficient debate, however, does not make the 18th Amendment any less legitimate in a strictly legal sense. The lesson learned from its passage is that any further amendment in the constitution, including modifying any aspect of the 18th Amendment, must be undertaken only after achieving a consensus through an open debate both in and outside parliament.

- Ahmed Bilal Mehboob is the president of Pakistan-based think tank, PILDAT.