18th Amendment failed to deliver by Abdul Quayyum Khan Kundi

Nawaz Sharif has suggested Grand National Dialogue. PPP has suggested a committee of the whole to discuss balance between institutions. I sent messages to most party leaders to find out where they stand on it. I have heard from some of them. We will discuss that later but first we have to see whether the last grand bargain in the form of 18th amendment work or not.

Chairman Senate Raza Rabbani, at that time a MNA, lead the parliamentary committee that drafted the 18th amendment to the Constitution which was considered a grand bargain at the time. This amendment has failed to live up to the expectations in last 7 years since it was adopted. Raza Rabbani cried in the parliament voting for military courts which was a symbolic acceptance of failure of the 18th amendment. I thought this will help him emerge as a better parliamentarian and Democrat but he failed again when he voted for military court extension despite making public comments that he will not vote for it. That was the second confirmation of the failure of the 18th amendment. Let me try to explain why I am saying this. I will focus on provincial autonomy, the powers of superior courts, the evolution of political parties; and qualification/disqualification of parliamentarians.

The 18th amendment was hailed for providing autonomy for the provinces and promised that it will deliver better governance to the people. But the reality is that it has weakened the federation because the amendment failed to incorporate what will be the basis of provinces and whether new provinces will be allowed to ensure better administration. The foundation of Pakistan was two nation theory which promoted that people of the new country will be governed by the universal values proposed by Islamic political thought while ethnicity and culture will take a back seat. 1973 constitution recognize ethnicity as a top political driver which has become a hindrance in developing a Pakistani identity. I am not rejecting that ethnicities or culture should not be considered or recognized. But is the ethnicity within a state defined by a geographic location or language/culture. We can have four Sind rather than just one. For instance, South Sind, North Sind, Central Sind etc. Similarly, we could have two KP that is North KP and South KP. Similarly, Punjab can be easily divided into North, West, East and South Punjab. The 18th amendment failed to address this important issue rather paved way for the Balkanization of Pakistan by ossifying four large provinces based on their ethnic identity. These provinces are run by political parties that are more regional than national in their attitude, organization, and politics. Whenever PPP is in trouble it runs to Sind for help and whenever PML N is in trouble it takes a rally through GT Road from Islamabad to Lahore. Same is true for MQM, PTI, JUI-F, and ANP.

Some basic services like health and education were divulged to provinces and taken away from the federal government without considering the full social impact. Education has two component which has distinct federal and provincial character. Syllabus of primary/secondary education should help develop a strong Pakistani national identity which is only possible when the federal government controls it. On the other hand, administration of schools should be a provincial subject. To promote local culture provincial governments can and should include local languages in their syllabus. Approval and regulation of private schools should also be a provincial subject. This recognition national syllabus and local management by center and province respectively were missing in the 18th amendment. This has the danger of weakening the Pakistani national identity as well as develop a non-uniform citizenry as wide differences exist among provinces. 18th amendment promised free primary and secondary education. But the law fails to address what will be the repercussions if a provincial government fails to deliver on it.

Another important element missing in empowering provinces was changing tax laws so that sales and excise taxes on good and services are collected and spent by provincial governments. Another issue remained unaddressed was the status of local languages. Just recognizing few languages while leaving others is a cause for division. Capability development of provincial bureaucracy was also, not addressed. All these puts together have not produced the desired objective of strengthening the Federation while at the same time empowering provinces to deliver good governance has failed to materialize.

PPP is blaming PML N for objecting to amendments to article 62 and 63 but there is no dissenting note in the document that proves this point. The party that spoke strongly in abolishing certain sub-articles of 62 & 63 was Awami National Party (ANP). But the interesting part is that all parties agreed to grant extraordinary powers to party heads thereby strengthening civilian dictatorships and hamper the development of democratic political parties.

There is a nexus between bar associations and superior judiciary. We saw this work effectively in the lawyer’s movement after a sitting Chief Justice was deposed by General Musharraf. We saw this nexus work again recently when Bar Associations organized protests and held a strike to demand resignation from an elected Prime Minister while a case was pending with Supreme Court. They prepared grounds for the decision of the Supreme Court which disqualified an elected Prime Minister through a technicality. Why does this nexus work and on what basis it is formed? The nexus has developed because 70% or more appointments to the high court and Supreme Court are made from the ranks of Bar Associations. The constitutional committee mandated to nominate judges also have a substantial influence from Bar Associations. The 18th amendment failed to break this nexus rather strengthened it further. The amendment should have restricted inclusion of Bar Association members for an appointment up to the level of District courts after which only career judges should be promoted to High and Supreme Courts.

The 18th amendment added Article 10A which guaranteed a fair trial to all citizens. This article was set aside recently when Supreme Court which is not a trial court disqualified an elected Prime Minister. This once again proved that 18th amendment instead of strengthening democracy has failed to deliver on its promise.

We need a major overhaul of the 1973 Constitution. All parties should agree that the next general elections should be for a constituent assembly that has to review the whole document and reform it. Our 1973 constitution is colonial in its nature and character. It does not reflect the foundation of our nation based on universal values promoted by Islamic political thought. It promotes divisions rather than allow the emergence of a united Pakistani nation.

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