The debate on mitigating the spread of the Corona virus, has brought the 18th Amendment to the Constitution under scathing attack by the Federal government. Their narrative is that it prevents the formation of a single uniform policy against the spread of the virus. The Federal Law Minister has categorized it the reason for deadlocks between Islamabad and the Provinces and personified it as laying a framework for a confederation instead of a federation.
18th amendment though formally promulgated in 2010, its raison d’être lies can be traced throughout in our history. In order to govern effectively in a mass of land divided territorially on the basis of ethno-linguistic lines, the British began to dilute powers from a strong centre to the Provinces from as early as 1919 with the introduction of Government of India Act, 1919. The latter was essentially a concession to the Indians who had begun to demand complete Independence from the raj. Unnerved to accede to this demand, the colonialists resorted to a temporary compromise which resulted in relinquishing some legislative and administrative control over crucial subjects in favour of the Provincial legislature which were dominated by different ethnicities. In fact, the strength of the Ethnic pressure posed by Sindh, Punjab and Bengal induced our founder to declare in the Lahore Resolution that its “constituent units shall be autonomous and sovereign”. It becomes unassailable that the concept federalism is the pillar upon which Pakistan had been established.
The Constitutions of 1956 and 1962 failed to meet the promised power sharing condition laid in the Lahore Resolution by conferring unbridled powers on the Governor General and the President respectively and making Pakistan one unit governed from the capital. The wounds of the broken promises entrenched in our constitutions fuelled the Bengali cessation movement, precipitating the fall of Dhaka.
Restoration is the central feature of 18th amendment. It seeks to restore the promise of Provincial autonomy promised by our founder in the Lahore Resolution. Further, the simmering pot of ethnic nationalism which ravaged Balochistan throughout the 2000’s over the narrative formed by the resentful Baloch leaders that Islamabad alone was reaping the benefits of the natural resources without giving the Province a fair share from the pie. In an attempt to put a lid on the brewing ethnic strife, the 18th amendment added a clause to Article 161 formally codifying the importance of dispensing the net proceeds of the tax and royalties collected from the gas and oil well heads to the province where it is located at first instance. We may distil another purpose of the amendment, which has been to resolve conflict by providing a constitutional cover for areas which had been in dispute.
No effect of this amendment is triter than the deletion of concurrent list from the fourth schedule of the Constitution. The result has been an unprecedented deluge of transfer of subjects from the Federal legislative and administrative domain to the Provincial domain. While the admirable feat is the unprecedented exemplification of decentralization of power and the consequent democratic inclusivity by giving provinces a greater stake in the management of their country. Innately, this framework has led to divergent responses to counter the virus but does that mean de-centralization inherently fosters discord and disunity?
The framers of our Constitution conceived cooperation inter se Federal and the provinces as an indispensable prerequisite of federalism. For the latter to be achieved, participation and dialogue are the key characteristics required. Our framers expressed their wish through formally institutionalising the Council of Common interests commanded by the Prime Minister as its chairman, consisting of the Provincial Chief Ministers and three other members appointed by the Prime Minister. By allowing the Prime Minister to call the council at least once in 90 days, the Constitution beseeches the federation to cooperate for the stability of the overarching structure of governance. However, the politics of self-interest, distrust and a lack of institutional forbearance in our political landscape has made cooperation and participatory federalism a steep slope to climb.
