Muhammad Ahsan Rana

Decentralization Experience in Pakistan:

The 18th Constitutional Amendment

• Introduction To 18th Amendment And Outline Of Its Each

Section
→ 18th Amendment to the Constitution of Pakistan was passed in April 2010
→ It sought to decentralize power in important ways by:
 Restoring the parliamentary character of the Constitution by undoing
changes made by military dictators like the powers of the President

→ It redefined the Parliament–judiciary relationship

→ It devolved several important functions to Provincial Governments by:
 Abolishing the Concurrent Legislative List
 Amending the Federal Legislative List

→ It is divided into six sections

→ Second section provides a brief history of federalism in Pakistan and
covers:
 Key provisions from the 1935 Act, the Constitution of 1956 and 1962 that
defined federal–provincial relations in Pakistan

→ Third section provides an overview of the 18th Amendment

 It examines the reduction of certain powers of the President
 New process for appointment of judges
 Provisions regarding political parties
 Addition to fundamental rights
 The formation of caretaker governments

→ Fourth section covers the following aspects:

 Role of the Council of Common Interests (CCI)
 Abolition of the Concurrent List and changes to the Federal List
 Provisions regarding the National Finance Commission (NFC)

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→ Fifth section examines the implementation challenges in following three

sectors:
 Education
 Health
 Agriculture

→ The sixth section concludes the article.

• Key features of the Government of India Act 1935

→ Government of India Act of 1935 was adopted with some amendments as
the interim constitution in 1947
→ It remained in force for the first 9 years of Pakistan’s existence
→ Provided a federal governance framework
→ Enunciated separate legislative powers for the federation and its
constituent units (called governors’ provinces)
→ Its sections 99 and 100 provided three legislative lists:
 Federal List
 Concurrent List
 Provincial List

→ Subjects listed as concurrent fell under the joint legislative control of the
Federal and the Provincial Governments:
 Federal List had fifty-nine items
 Concurrent List had thirty-six items
 Provincial List had fifty-four items

→ The Act also provided the sharing of tax revenues between the federation
and its constituent units
→ An Intra-Provincial Council was created under Section 135 to resolve
disputes between the federation and provinces or among provinces

• Adoption of a new Constitution in 1956 and its

characteristics
→ After 9 years of deliberations and political negotiations, the Constituent
Assembly finally adopted a new Constitution in 1956

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→ 1956 Constitution provided a federal, parliamentary governance structure

for Pakistan (Article 1)
→ Article 43 created a unicameral Parliament
→ Article 44 specified the number of seats at 300
→ Constitution recognized the concept of One Unit
→ Seats in the Parliament were equally divided between East and West
Pakistan, with ten seats reserved for women
→ Article 106 divided subjects into three legislative lists
 Federal List (thirty items)
 Concurrent List (nineteen items)
 Provincial List (ninety-three items)

→ The Constitution created a National Economic Council comprising four

federal ministers and three ministers from each province
→ Despite its federal and democratic character, the 1956 Constitution had two
important centralizing features
 Article 109 specified that the residual powers not included in any of the
three lists will vest in the Federal Government

→ Article 92 required the governor’s recommendation before introducing a

bill or amendment which constrained provincial authority to legislate
freely
→ The Constitution required the Chief Justice of Pakistan to mediate in
dispute between the two provinces or the federation and provinces
→ It was abolished as a result of marshal law in October 1958.

• Constitution of 1962 and its key features

→ Ayub Khan introduced a new Constitution in March 1962
→ It was a poor mix of the 1935 Act and the 1956 Constitution
→ Article 1 of the new Constitution deleted the word ‘Federal’ from the name
of the country
→ Article 70 created two separate assemblies for East and West Pakistan
→ The Constitution provided federal legislature with 156 members equally
divided between the two provinces
→ The 1962 Constitution provided only one list (Third Schedule) containing
forty-three subjects

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→ Article 132 vested the residual powers with provinces

→ Article 131 empowered the Central Legislature to make laws in the national
interest of Pakistan on following matters:
 National security
 Economic and financial stability
 Planning and coordination

→ The 1962 Constitution was immediately abrogated by the new military

government upon taking overpower in 1968

• Constitution of 1973 and its journey of amendments

→ Elections were held in 1971 and the National Assembly took up the task of
framing a new constitution
→ The new Interim Constitution—unanimously passed in April 1973
→ It declared Pakistan a federal republic
→ It created a bicameral Parliament, i.e. the National Assembly and the
Senate, and provincial assemblies
→ There were three tiers of government:
 Federal
 Provincial
 Local

→ The Constitution contained two lists:

 Federal Legislative List
 Concurrent Legislative List

→ The Federal List was divided into Part I and Part II, which had fifty-nine
and eight items respectively
→ In case of a clash between federal law and a provincial law in the
Concurrent List, the federal law was to prevail (Article 143)
→ Article 144 of the Constitution allowed the Federal Government to legislate
even on a residual subject
→ CCI provided for joint decision-making by the federation and provinces
on certain matters
→ It comprised chief ministers of provinces and an equal number of members
from the Federal Government to be nominated by the Prime Minister

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→ To decide important economic matters, a National Economic Council was

constituted comprising the Prime Minister and members nominated by
the President
→ Article 160 created an NFC comprising finance ministers of Federal
Government and Provincial Governments and members appointed by the
President
→ The NFC distribute the revenue between the Federal Government and
Provincial Governments
→ the 1973 Constitution was amended by democratically elected as well as
military governments
→ the 8th Amendment and the 17th Amendment introduced respectively by
General Zia and General Musharraf during their tenures
→ Both distorted the parliamentary and the federal character of the
Constitution

• Provisions of the 18th Amendment

→ Provisions of the Amendment can be grouped into five categories:
 restoration of the parliamentary form of government
 strengthening key institutions
 appointment of judges
 federation–provinces relations
 miscellaneous

• Restoration of the Parliamentary Form of Government

→ The 18th Amendment repealed the 17th Amendment in its entirely and also
declared illegal the various Legal Framework Orders of 2002
→ The President’s powers were reduced in several aspects
→ the executive authority of the federation is to be exercised by the Federal
Government and that the Prime Minister shall be the chief executive
→ Rules of Business are also to be framed by the Federal Government and
not the President
→ If the President has to act in his discretion, the Proclamation has to be
placed before Parliament for approval by each House within 10 days.
Failing such approval, the declaration shall cease to be effective upon 2
months of its pronouncement.

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→ Article 58 was also amended to delete the infamous 2(B), which empowered
the President to dissolve the National Assembly
→ After the deletion of 58 (2[b]) and amendment of 58 (1[a]), the National
Assembly can only be dissolved on the advice of the Prime Minister or
when a vote of no confidence has been passed against a Prime Minister
→ The President will act on the advice of the Prime Minister (and his
Cabinet) in all important matters.
→ Furthermore, time limits have been specified for the President to act on
the advice of the Prime Minister.
→ The period during which the President has to grant his assent to a bill
passed by the Parliament has been reduced to 10 days.
→ The President’s power to refer a question to a referendum in his discretion
has also been removed.

• Strengthening Key Institutions

→ The 18th Amendment has strengthened two key constitutional institutions:
 Auditor General of Pakistan
 Election Commission of Pakistan.

→ The auditor-general has been granted a fixed term of 4 years

→ The term of office of the Chief Election Commissioner (CEC) has been
enhanced from 3 years to 5 years.
→ Article 213 requires the Prime Minister to forward three names to a
parliamentary committee after consulting the Leader of the Opposition in
the National Assembly.

• Appointment of Judges
→ A new Article (175A) was inserted in the Constitution, which created a
Judicial Commission
→ of Pakistan for the appointment of judges to the Supreme Court, High
Courts and the
→ Federal Shariat Court.
→ The Commission was to comprise the Chief Justice of Pakistan and six
other members—two

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→ senior-most judges of the Supreme Court, a former Chief Justice or a

former judge of the Supreme Court nominated by the Chief Justice in
consultation with the two judges, the Federal Minister for Law and Justice,
the Attorney General of Pakistan and a senior advocate nominated by the
Pakistan Bar Council
→ President was required to appoint the most senior judge of the Supreme
Court as the Chief Justice of Pakistan
→ After the 18th Amendment, a petition was filed in the Supreme Court of
Pakistan challenging
→ these portions of the Amendment on the ground that this amounted to
undermining judicial
→ autonomy and altering the ‘basic structure’ of the Constitution (Hamid,
2010)
→ The Supreme Court passed an order in October 2010 highlighting the
objections to the Amendment and referring the matter back to the
Parliament
→ The 19th Amendment—was brought to settle the issue of judges’
appointment once and for all

• Miscellaneous
→ The NWFP was renamed as Khyber Pakhtunkhwa (KPK)
→ It also triggered the demand for the creation of a new province in KPK
→ Spellings of Baluchistan and Sind were changed to Balochistan and Sindh
respectively
→ Article 17 removed the requirement for political parties to hold intra-party
elections
→ They are still required to hold these elections but under an Act of the
Parliament (Political Parties Act of 1962), rather under the Constitution
→ The ban on a person becoming the Prime Minister for a third term has
also been removed A new process
→ Article 6 expanded the definition of treason to also include suspension
and holding in abeyance of the Constitution. Furthermore, conspiring,
abetting and collaborating to abrogate, subvert, suspend or hold in
abeyance the Constitution was also made an offence of an equal measure
under the said Article

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→ The Sixth schedule (containing a list of 35 laws and Seventh Schedule

(containing a list of 8 laws) to the Constitution have been abolished

• Decentralizing Responsibility and Authority

→ A large portion of the 18th Amendment is strengthen the position of
provinces in the federation of Pakistan.
→ In addition to transferring several functions to provinces, the Amendment
clarified numerous procedures in a manner to grant more powers to
provinces

• Changes to the Federal Legislative

→ Federal legislative had 2 parts
→ Part I contained 59 items which was modified to 51 items
→ Part II contained 8 items which was modified to 18 items
→ Four items were transferred from Part I to Part II of the List. These were:
major ports; census; extension of the powers and jurisdiction of members
of a provincial police force to other provinces; and national planning and
economic coordination
→ Four new items i.e. all regulatory authorities established under federal law;
supervision and management of public debt; standards in institutions of
higher education as well as research, scientific and technical institutions;
and Inter-Parliament coordination were added to Part II
→ Electricity and legal, medical and other professions were shifted from the
Concurrent List to Part II of the Federal List
→ One item (boilers) was shifted from the Concurrent List to the Federal List
Part I
→ State lotteries; duties regarding the succession of properties; estate duty
with respect to the property; capital gains; and the general sales tax on
services were deleted from the part I

• Abolition of the Concurrent Legislative List

→ It contained 47 subjects

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→ The 18th Amendment abolished the Concurrent List. As noted above, two
subjects were transferred to Part II of the Federal List and one subject was
transferred to Part I of the List
→ The remaining forty-four subjects automatically devolved to provinces as
residual subjects
→ The subjects that came to an exclusive provincial realm include criminal
law, criminal procedure, civil procedure, evidence and oath, marriage and
divorce, adoption, bankruptcy, arbitration, contracts, transfer of property,
preventive detention, arms and firearms, explosives, opium, drugs and
medicines, poisons and dangerous drugs, mental illness, environmental
illness and pollution, population planning and social welfare, labour
welfare, trade unions, shipping and navigation on inland waterways,
newspaper, books and printing presses, evacuee property, Islamic
education, zakat, tourism and auqaf
→ Provinces were now required to legislate on these subjects provinces had
to develop

• The Implementation Challenge

→ First, the federal (elected and unelected) officialdom was quite averse to
letting go of responsibility, as it ultimately meant the loss of control over
human, physical and fiscal resources
→ Second, there were apprehensions about the capacity of Provincial
Governments, which neither had the legal and institutional infrastructure
nor the human resource to effectively perform various functions

• Agriculture
→ In the 1973 Constitution, agriculture was part of neither the Federal
Legislative List nor the Concurrent Legislative List. It was a residual
subject and the exclusive responsibility of provinces
→ There was a large Ministry of Food and Agriculture in the Government of
Pakistan, which, was dissolved but reincarnated as the Ministry of Food
Security and Research

• Education

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→ The Article 25A, which made education a fundamental right and required
the state to provide free and compulsory education to all children between
the ages of 5–16 years
→ Implementation of this fundamental right requires the Federal and
Provincial Governments to establish necessary legislative and institutional
frameworks for their respective areas of jurisdiction
→ Furthermore, the abolition of the Concurrent List brought the following
two subjects in the exclusive provincial realm:
 Curriculum, syllabus, planning, policy, centres of excellence and
standards of education
 Islamic education

→ The following organizations/departments of the dissolved Ministry are

now attached to the newly established Ministry of Education and Training:
 Higher Education Commission;
 National Vocational and Technical Training Commission;
 National Training Bureau;
 National Talent Pool;
 National Commission for Human Development;
 Academy of Educational Planning and Management;
 Akhtar Hameed Khan, National Centre for Rural Developmen
 Federal Board of Intermediate and Secondary Education
 National Education Assessment System
 National Internship Programme.

• Health
→ health was also a residual subject
→ However, the following items (entries 20–23) in the Concurrent Legislative
List enabled the Federal Government to extend its role in this area:
 drugs and medicines
 poisonous and dangerous drugs
 prevention of extension of contagious and infectious diseases from one
province to another
 mental illness and mental retardation

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→ Considering the national importance of health, Pakistan’s international

commitments and the existence of several health-related entries in the
Federal List Part II, the need to establish an institutional hub in the Federal
Government for all health-related functions was suggested by several
commentators (e.g., Nishtar, 2011)
→ In 2013, the government created a new Ministry of National Health
Services, Regulation and Coordination, where the dispersed functions
were quickly reassembled
→ At the time of dissolution, the Ministry of Health was responsible for
performing fifteen functions and administered twenty-two attached
departments/organizations

• Conclusion
→ the 18th Amendment was a milestone in the constitutional history of
Pakistan
→ strengthened provinces in the federation by abolishing the Concurrent
Legislative List, Enlarged the Federal List Part II, strengthened CCI,
reduced powers of provincial governors and Enhanced powers of the
Senate
→ Devolution of functions to provinces and giving them a greater role in
running federal affairs
→ was indeed a major step in correcting the historical imbalance in federal–
provincial relations Implementation, however, proved problematic
→ Federal ministries identified for dissolution went back to the
Implementation Committee and made a case for their reincarnation under
a different title or at least the assignments of most of their functions to
other ministries in the Federal Government
→ Due to such cases less than one-third of the functions

 THE END 

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