18th Constitutional Amendment

National Assembly passed [April 8th 2010]

Senate [April 15th 2010] & President [April 19th 2010]

1. NWFP to KPK, Baluchistan to Balochistan, Sind to Sindh

2. Emergency in a province will require prior approval of that
province
3. Emergency- by president will require to place it before
parliament
4. Cabinet shall be 11% of the total strength of the parliament
5. Four seats [each province] allocated to Minorities in Senate
6. Senate working days increased from 90 to 110
7. Education up-to age of 16 is compulsory
8. Concurrent list is abolished
9. 58 (2b) is repealed
10. PM shall advise President to nominate chiefs of military
11. No restriction on terms of PM
12. Caretaker PM shall be selected on advise of [PM and
Opposition Leader]
13. Fair Trial
14. Right to access to Information
15. FPSC chairman on advise of PM
16. PPSC chairman on advise of CM
17. Judicial Commission for Judges appointment
18. Islamabad High Court established
19. Judges of Federal Sharia Court also by Judicial Commission
and Chief Justice of FSC.

Study Notes by Aamir Mahar 1

 EFFECTIVE IMPLEMENTATION OF
18TH CONSTITUTIONAL AMENDMENT
(Muhammad Murtaza Noor)
The Senate in Pakistan, over the years, has emerged as an
essential organ, and a stabilising factor of the federation. It is also
acting as a permanent legislative body, which symbolises a
process of the continuity of national affairs.

The role of the Senate is promotion of national interconnection,

integrity and harmony and confidence building of smaller
federating units so that their rights are well-protected. 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.

Ethnic diversity, cultures, languages, and geographical make-up of

Pakistan necessitated an institutional structure reflecting
pluralism. The way in which the 1973 Constitution was conceived,
it was envisioned by the framers that with diverging interests of
different ethnic groups, Pakistan required a system of federal
bicameralism instead of unicameral legislature, unlike the 1956
and 1962 constitutions. Bicameralism is also considered the
easiest way to accommodate the dualist structure of the state,
because it is a method of representing popular national interests
and state and regional interests at the same time.

Parliamentary committees have a vital role in a parliamentary

system, and act as a vibrant link between parliament, the
executive and the general public. These committees need to play a
more proactive active for executive accountability and effective
implementation of constitutional provisions, especially relating to
protection of fundamental rights guaranteed to citizens of

Study Notes by Aamir Mahar 2

Pakistan, as stipulated in articles 8-28 of the Constitution of
Pakistan.

During the process of purification of 1973 constitution in the year

2010, it was the Senate of Pakistan that mainly played its 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

Study Notes by Aamir Mahar 3

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 for establishment of 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.

While the 18th amendment enjoined the provincial governments

to hold elections for local bodies and establish self-governments
at district and sub-district levels, in reality, devolution of power
has not been done so far in two of the largest provinces of
Pakistan — Punjab and Sindh. The provinces were also required
to establish Provincial Finance Commissions to transfer funds to
districts. The Right to Information law could not be passed at
federal level as per the article 19-A of the Constitution of Pakistan.
The Senate being custodian of federation of 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 was being headed by Senator Mir
Kabeer Ahmed who hails from Balochistan. The committee
needed to thoroughly review the progress over the
implementation of the 18th Constitutional Amendment. It would
also deliberate and meet on regular basis to resolve these
outstanding issues on an urgent basis. The committee also needed
to learn from past experiences and best practices from other
federal countries.

This decision of inclusion of six members from Senate in the

Public Accounts Committee was laudable, and would be greatly
helpful in strengthening the federation of Pakistan, as
Study Notes by Aamir Mahar 4
parliamentarians from smaller provinces would get more
representation for oversight over financial matters of the federal
government.

18TH AMENDMENT: ITS IMPLICATIONS FOR

FEDERALISM AND IMPACT ON PROVINCES
Shahid Umar

Every member of the parliament unanimously agreed to

the new constitutional changes. The 18th constitutional
amendment has reformulated the structural outlines of the state
through a paradigm shift from a highly centralized to a
substantially decentralized federation.

Federalism refers to the mechanism through which power is

divided among the constituent units and the federal government,
in order to reduce the likelihood of an authoritarian or over
centralized government (Hafeez, 2011) . In federalism power and
resources are shared among constituent units, where every
constituent unit has the autonomy to spend and collect revenue
on its own behalf. Autonomy of each province is defined in
constitution and the interference of federal government is limited
up to an extent where constituent units can make certain decision
on its own behalf related to spending and collection of resources.
In this new constitutional framework Pakistan has introduced
multilevel governance system by extending the autonomy of
provinces through the process of decentralization at the lower
layers of the local governance.

In this new amendment the power of the president of Pakistan

was dissolved in order to eliminate the chances of military coup in
future. Pakistan became a parliamentary republic from a
presidential system, because presidential system caused political
instability many times, in the case of military regimes, where civil
Study Notes by Aamir Mahar 5
powers were demolished. It was a first time in the history of
Pakistan that a president himself transferred powers to the
parliament and to the Prime Minister (Hafeez, 2011). The
2008-2013 term is often stated to be the first compete democratic
change of power without a military president or a coup (Hafeez,
2011).

Implications of 18th amendment for federalism

Devolution of Power under 18th

Amendment
Pakistan’s parliament has
passed the 18th Amendment’s that,
among other changes, gives the
provincial governments greater
autonomy under the constitution by
abolishing the concurrent list and
other related provisions. The full
impact of the amendment’s many
changes has yet to be fully analyzed
and discussed by key stakeholders (Nabi, 2013). The 18th
amendment eliminates the “Concurrent List,” i.e. ascertain of
areas where both federal and provincial governments may
legislate but federal law prevails. Laws governing marriage,
contracts, firearms possession, labor, educational curriculums,
environmental pollution, bankruptcy, and in 40 other diverse
areas the provinces would have exclusive jurisdiction and each
provincial assembly will be responsible for drafting its own laws
on the issues. The 18th constitutional Amendment potentially
impacts the mandate of several Federal Ministries and by
implication increases the roles and responsibilities of the related
institutions and administrative structures at the provincial level
(Nabi, 2013).

Study Notes by Aamir Mahar 6

The 18th constitutional amendment was a positive step towards
the decentralization process in a country like Pakistan. It brought
some positive implications for federalism in Pakistan. In this new
amendment powers were dissolved to constituents units, which is
the beauty of federalism. The bill enhanced provincial autonomy,
where the president will no longer be able to unilaterally declare
emergency rule in any province (Najam, 2010). The new
amendment brought some remarkable changes which made the
roots of federalism stronger than ever in Pakistan. The size of the
cabinet was restricted to 11 percent of the members of parliament
and respective provinces in order to ensure good governance. In
federalism proper care for minorities are ensured, thus in order to
protect the rights of minorities, four seats, one from each province
are allocated for the minorities in senate. This initiative increases
the strength of minorities in senate and say in general. Council of
Common Interest’s formation was revised and Prime Minister was
appointed as chairman. The council will be obligated to meet once
in 90 days. The Council of Common Interest has been given
additional powers and the provinces have been given more say on
national matters by enhancing their representation in the
council. The reformation in the Council of Common Interest was
a step forward in the decentralization process, because provinces
will bring their common issues on one table which will be address
on time, and provinces would be able to pressurize federal
government for their common needs and requirements (Najam,
2010).

In the new constitution provinces are required by law to establish

local government systems, devolve political, administrative and
financial responsibility and authority to elected representatives.
The two major pillars of federalism which are the devolution of
political and economic powers/rights to the constituent units.
Provinces are provided with more political and economic
autonomy in 18th amendment. Federal government would have
Study Notes by Aamir Mahar 7
less interference in the process of revenue spending, although
federating unites still have no full autonomy of revenue/tax
collection. Local government system is the beauty of federalism,
where elected representatives hold offices. They are more aware
of local issues, thus they can more easily address those issues as
well. Amendment to article 157 says federal government must
consult provincial government before installing hydroelectric
power stations in any province (Najam, 2010). It means provinces
are more autonomous in matters of developmental projects, and
they will be consulted before the implementation of any project,
even if it is related to national interest.

18th Amendment potential impact on Khyber Pakhtunkhwa’s

political and economic progression

The name of North-West Frontier

Province (NWFP) was replaced by
Khyber Pakhtunkhwa in the
18th constitutional amendment.
Apart from this Council of Common
Interest was made stronger in order
to ensure regional autonomy and to
reduce the autonomy of federal
government on different issues.
Each province was made more
autonomous regarding their
resources and certain tax collection/ spending, and other different
developmental programs. Every province would have now
balanced development and regional equity. Each province will be
provided with balanced allocation of developmental spending,
where no overlapping of spending will be ensured. Through NFC
Award which is a constitutional body set up for the distribution of
financial resources among the provinces by federal government
on annual basis, called National Finance Commission Award.

Study Notes by Aamir Mahar 8

Certain types of taxes collected in each province are pooled, and
then redistributed according to the NFC formula (SADAQAT,
2006). Regional equity was ensured under NFC award, where a
less systematic approach has been adopted to decentralize the
financial matters in Pakistan since the 6th NFC award. Population
was the sole distribution criteria, adopted in all NFC awards from
the divisible pool. This has raised friction among other provinces,
demanding inclusion of other potential variables evolved from
international best practices. Like other provinces, KP demanded
distribution of resources and grants-in-Aid on the basis of their
poverty level and backwardness (Hashmani, 2010). The demands
were accepted under the 7th NFC award where amendment took
place. Other amendments regarding empowerment of KPK
contain, to have full control of social and production sector, which
is related to economic independence of each province. KPK will
ensure larger role in electricity, water sector and natural
resources. Now the government of KPK will determine the
distribution and transmission of electricity within the province
and also to levy to levy tax on the consumption of electricity
within the province. In case of any dispute between Federal
Government and a Provincial Government in respect to any
matter may move to the Council of Common Interest for
resolution of the dispute. Federal Government will spend more
money on provincial public sector development programs than
Federal Government. KPK like other provinces are free to contract
domestic and external debts for their development (Hashmani,
2010).
Different clauses were mentioned in the 18th constitutional
amendment to ensure provincial political autonomy and long term
progression. Clause which states that’ Provinces required by law
to establish local government systems, devolve political,
administrative and financial responsibility and authority to
elected representatives. The devolution of political power to
provinces was ensured under this clause. The provinces were
Study Notes by Aamir Mahar 9
provided autonomy to establish a fully functioned elected local
government system. It is a positive aspect of a Federalist state to
reach to the masses and answer their demands. It plays a very
crucial role in KPK’s political progression, because citizens of KPK
will elect their people who will represent them in local
governments. The person whom they elect will be from their
community, thus he will be answerable to his community. They
will also have a say in political issues as well as in the allocation of
funds for the key problems of the area. Local government also
helps bringing political awareness among people, where they are
able to elect people who they know they will work for their
betterment and sound future. People can easily meet and discuss
their issues with the elected representatives as they are from their
community. Further Governor should be a resident and registered
voter of his/her province, he/she would be appointed by
president on prime minister’s advice, which also ensures
provincial autonomy.

18th amendment has a positive potential impact on Khyber

Pakhutunkhwa’s political and economic progression. It plays a
very crucial role in strengthening political process and economic
progress by giving more autonomy to the Province.

THE PROVINCES’ GAIN AFTER 18TH AMENDMENT

The biggest beneficiaries of the 18th Amendment would be the

federating units and this should be made known to the people of
these units, otherwise the reform measures will not receive the
kind of public support that is needed for their successful
implementation. Let us take a look at the salient features of the
deal offered to the federating units.

The constitutional reform package not only meets the federating

units’ demand for abolition of the Concurrent Legislative List it
Study Notes by Aamir Mahar 10
also allows the units some say in respect of a few matters that
have so far been in the Federal List. For instance, census, major
ports, use of the police force belonging to one province in another
province and estate duty on property have been shifted from Part
I of the Federal List to Part II. Since all matters listed in Part II of
the Federal List fall under the purview of the Council of Common
Interests the provinces will be able to discuss matters related to
these new entries.

The change proposed in Article 172 makes the federating units

joint and co-equal owners with the federal government of mineral
oil and gas within the provinces or the territorial waters adjacent
thereto. At present ownership of these resources vests in the
federal government alone.

The amendments proposed in Articles 128 of the

constitution envisage a most welcome increase in the powers of
the provincial assemblies. At present a governor can extend the
life of his ordinance by reissuing it before its normal life (three
months) expires. This privilege is to be transferred to the
provincial assemblies. Only they can extend the life of a
gubernatorial ordinance for 90 days and this only once. Any
curtailment of the powers of the governor, who is essentially the
centre’s agent, is a step towards increased provincial autonomy.

Similarly, an amendment proposed in Article 232 will make it

impossible to proclaim emergency on the ground of internal
disturbance beyond the power of a provincial government to
control, because any such action will require a resolution by the
provincial assembly.

The provincial assemblies will also get powers to intervene if the

provincial governments entrust any of their functions to the
federal government. All such transactions will have to be ratified
Study Notes by Aamir Mahar 11
by provincial legislatures.

The provincial assemblies are fortunate that unlike the members

of the National Assembly, who must elect a Muslim as the prime
minister, they will be free to elect any member (not necessarily a
Muslim)to be their chief ministers.

Two proposed changes in the provisions of the chapters on

Fundamental Rights and Principles of Policy are specifically in the
interest of the federating units. An amendment proposed in
Article 27 (Fundamental Rights) will enable the parliament to
make laws in order to redress a province’s grievance regarding its
under-representation in the services of Pakistan.

The proposed addition of a paragraph to Article 38 (Principles of

Policy) is likewise significant. It says: “the shares of the provinces
in all federal services, including autonomous bodies and
corporations established by, or under the control of, the federal
government, shall be secured and any omission in the allocation of
the shares of the provinces in the past shall be rectified.” The
proposed increase in the number of days the Senate should meet
(110 days instead of 90 days) and the bar on issuance of
presidential ordinances while the Senate is in session enlarge the
provinces’ right to oversee the federation’s working.

Following the enactment of the 18th Amendment no province will

have as its governor a person belonging to another province. This
policy has been adopted in the post-Musharraf period and it will
now get the essential constitutional cover.

Significant changes have been proposed in the articles related to

the Council of Common Interests. The composition of the Council
(Article 153) remains more or less unchanged — the prime
minister and his three nominees represent the centre and the four
Study Notes by Aamir Mahar 12
chief ministers will represent the provinces. But the changes
proposed in Article 154 are quite important. The council shall be
constituted within 30 days of the prime minister’s swearing-in;
the council will have its own permanent secretariat (and not
merely a desk in the cabinet division) and it shall meet at least
once in 90 days.

An amendment to Article 157 will oblige the federal government

to consult the provincial government concerned before taking a
decision to build or sanction a hydro-electric power station in any
province.

Article 160 is to be amended to ensure that the share of a province

in an NFC award will not be less than the previous award. Equally
important is the new facility offered to the provinces to raise
domestic or international loans.

That all these benefits to the provinces fall short of the

expectations of the people of the federating units is no secret. But
if politics is the art of the possible it is necessary to realise the
limitations of the present parliament. A parliament truly
representative of the pluralist society that Pakistan is perhaps
could have offered the federating units a better deal. To persuade
the present lawmakers to offer the provinces more than the
National Assembly did vide the 1973 Constitution is quite an
achievement. The issue of securing the units the maximum
possible autonomy must wait till the people can elect their
genuine representatives or find a way to change the polity
through a revolution.

Quite a few parties/groups in the less populous federating units

may consider it politically expedient to denounce the 18th
Amendment. They have a right to take a stand on the principle of
self-determination. Instead of quarrelling with them the federal
Study Notes by Aamir Mahar 13
government should make serious efforts to remove the barriers to
a normal discourse with the people of the provinces. They must be
enabled to believe that this constitutional reform will not be
subverted the way the 1973 Constitution was no sooner than it
was signed.

The federal government is likely to discover that implementation

of the Raza Rabbani committee’s reforms will be more difficult
than their formulation. And its hardest job is to convince the
people, especially in Balochistan, that constitutional guarantees
are not only sacred, they are also enforceable.

SOME REFLECTIONS ON THE 18TH AMENDMENT

Dawn Newspaper
SINCE Pakistan came into existence there has been a tussle
between the politicians and the generals. When they assume
power, the generals seek legitimacy and the politicians more
power. Together, they shred the constitution to pieces. The
generals must remember that no matter what the causes of their
takeover, they will never have legitimacy. The politicians should
remember that no amendments to the constitution can protect
them from their inadequacies and short-comings.
We seem to be going through still one more effort of amending
our constitution. We have a problem with the powers of the
president. Agreed that in a parliamentary form of democracy like
we have, the chief executive should be the prime minister. What
we should ensure is that as in a true parliamentary system the
whole chain, the prime minister, the cabinet and parliament be
empowered and not just the prime minister.

The most notorious section of our constitution currently seems to

be Article 58(2)(b). Agreed that it should not be there. A number
of coups though have been avoided in this country and democratic

Study Notes by Aamir Mahar 14

process has survived as a result of article 58(2)(b). For the time
being we need a safety valve in the shape of 58(2)(b).

A judicial review as we currently have in the 17th amendment is

not appropriate. We politicians should try and resolve our
problems politically. The president's power under this section
should be there but with adequate political checks. One check may
be that after having exercised this power, the president should be
obligated to seek a vote of confidence from the newly elected
National Assembly, failing which he or she should be stripped out
of power.

With respect to the appointment of governors and service chiefs,

agreed that the power should be with the prime minister. We
should realise though that in this game there cannot and should
not be any favourites one is seeking to appoint. Such
appointments should be made purely on merit and for the
betterment of the country and the institution.

We have a very important issue of provincial autonomy. Nobody

can disagree with the concept but a few fundamental questions
arise. Is it not true that our provinces right now are far more
autonomous than the Indian states? Is the abolition of the
concurrent list the only way to give more autonomy to the
provinces? Is it not the current structure of the federation, where
Punjab constitutes over 60 per cent of the population, the main
problem?

As the federation stands today, when Pakistan grows, Punjab

grows at a faster rate than the rest of the country and thus
becomes richer. The creation of a new province should not be
based on ethnic or linguistic reasons. Its capital should be
reachable by the population easily. The current balance in the
senate should not be distorted, meaning that the balance Punjab,
Study Notes by Aamir Mahar 15
Balochistan, Sindh and the NWFP have in the Senate at present
should be retained after the creation of the new provinces. This
criterion can only be met if we split the existing provinces in equal
numbers. The process to create a new province should be
simplified in the constitution.

Creation of more provinces in Pakistan will strengthen the

federation as it exists today. These provinces should be given
direct control of more sources of revenue. Currently a major
chunk of the combined revenues of federal and provincial
governments are collected by the centre. Almost three fourth of all
provincial expenditures are met through resource transfers from
the federal government as per the NFC awards. More autonomy
may also be given to the provinces by making their share in their
natural resources more equitable, and by giving them adequate
employment quotas in all government services.

The constitution as it existed on October 12, 1999 should be

restored, but the amendments relating to joint electorates,
minorities and women reserved seats, lowering of voting age and
increase in number of seats of parliament should be retained. The
term of the National Assembly should be reduced to 4 years.
The concurrent list is a list of areas where both the provinces and
the federal government can legislate. In case of a conflict, the
federal legislation currently prevails. We seem to believe that
abolishing the concurrent list and reducing the federal legislative
list is the way for achieving more provincial autonomy. No body
seems to have done any home work on the implications for the
federation, as it currently exists, of such a move. It may entail a
major dismantling of the federal structure and major
enhancement of the capacity of the provincial governments. The
Federation may cease to function and may become redundant.
We should reduce the federal legislative list somewhat and add
these items to the concurrent list. The existing concurrent list
Study Notes by Aamir Mahar 16
should be retained. However, in the concurrent list we should
have two sections. One section should be laws and areas where
the federal legislation will prevail. The other should be laws and
areas where provincial legislation will prevail in case of a conflict.
This will give adequate autonomy to the provinces without
jeopardising the federal structure.

The concept of a judicial commission making initial

recommendations is fine. Parliamentary scrutiny in the end is
done in many countries. In between, the prime minister of the
country should have some say too. The Charter of Democracy's
clause of three recommendations of the judicial commission to be
sent to the prime minister, who then forwards one to the
parliamentary committee seems appropriate.

The appointment of the chief justices of the provincial and

supreme courts should be made by the prime minister. These
should not only be based on length of service, but also on
competence and reputation. The appointments must also come
before the parliamentary committee, which having a
representation of opposition and treasury equally, should be able
to block with a two third majority. Similarly the appointments of
the head of accountability organization or the chief election
commissioner again should be made in a similar fashion as the
appointment of the chief justices.

The current system of our elections, being first by the post, is

biased towards the larger political parties of the country. In the
national and provincial assemblies, like the reserved seats of
women and minorities, a new category of technocrat members
should be added. All these reserved seats should depend on the
actual percentage of votes a particular political party is able to get
in an election and not on the number of members they are able to
elect. A serious problem in Pakistan is the non existence of
Study Notes by Aamir Mahar 17
adequate capacities within the ranks of political parties to govern,
once they get into power. Like the senate, the addition of
technocrats in the national and provincial assemblies would give
political parties a better capacity to govern. Also, the minorities
still remain unrepresented in the senate provisions for which
should be made in the constitution.

Most of the legislation in Pakistan is done through ordinances

which essentially is a legacy of our colonial past. No country in the
world, in the presence of duly elected bodies, permits the issuance
of ordinances. If we look at the history of our legislation, apart
from the NRO, no ordinance has subsequently been removed or
significantly changed by an assembly. If we want to empower our
assemblies, we must get rid of the power of the executive to issue
ordinances.

The last local government system had a lot of positive points. The
system had its teething problems though. Revenue and law and
order functions should be taken away from these local bodies.
Other powers should remain intact. The process for the election of
nazims, naib nazims and reserved seats for district / tehsil
councils should be simplified so that it is less prone to
malpractices.

With respect to the status of Fata, the options are that it can
continue the way it is now, administratively and politically, or it
can become part of our existing provinces, or become a new
province or be given special status like Gilgit-Baltistan. Obviously
the people of Fata must be consulted in what they want for
themselves. But my recommendation is to give them the status
similar to that of Gilgtit-Baltistan.

Years of mismanagement, political manipulation and corruption

have made Pakistan's civil services incapable of providing
Study Notes by Aamir Mahar 18
effective governance. The previous regime's devolution plan led to
further confusion. Reforms of the civil service should be
prioritised in order to make it into a more effective and an
accountable institution. The recommendations of the National
Commission on Government Reforms, which was set up by the
previous government in 2006 and which has presented a report to
the prime minister in May 2008, could be the starting point for the
debate to reform the civil services.

My advice to my political colleagues is that the eighteenth

amendment is a good effort. It is necessary but certainly not
sufficient. If we really want to strengthen democracy, let us start
delivering to the people and let us learn to protect the interests of
the state rather than our own. What has happened in Washington
should be an eye opener where the red carpet was rolled out for
our army chief, with politicians nowhere to be seen, only two year
after the election. Such is the level of vacuums we create which of
course take no time in filling.

HIGHER EDUCATION: IMPLICATIONS OF

THE 18TH AMENDMENT
Prof Dr Abdul Nabi
Education has been understood as preparation for life. It is an
essential element in development and social change in accordance
with our needs. Higher Education (HE) in particular is considered
to play a crucial role in the grooming of the new generation for
socio-economic change. It provides professionals to cater to the
needs of private and public enterprises through knowledge
exchange.
The 18th Amendment Act, 2010, passed in the National Assembly
on April 8, 2011, introduced a number of changes in the
Constitution of Pakistan-1973. It amended 102 articles and
devolved 47 subjects to the exclusive legislative and executive
domain of the provinces. Education is one of the key subjects
Study Notes by Aamir Mahar 19
being devolved to the provincial mandate. The concurrent
legislative list that included education as a shared legislative
jurisdiction at the federal and provincial level has been omitted,
which will have a negative impact on education in general and HE
in particular.

The omission of articles from the concurrent list and new entries
in federal legislative list will have significant implications on the
HE sector in Pakistan and Higher Education Commission (HEC).
For example, one can hardly separate item 38 being devolved to
provinces from Entry 12 FLL part-II. This reflects the negligence
of the parliamentary committee in consulting scholars,
educationists, VCs, reviewing HEC’s role, arranging seminars and
conferences before devolution of the education sector.

It is important to note that articles 12, 6 and 13 were inserted as

the mandate of the Council of Common Interest rather than HEC.
The mandate of HEC under its ordinance of 2002, clause 10 (A, G,
O and V) has been devolved to the province as per article 38 and is
a significant shift. It has to justify its legitimacy as a single federal
body on HE. The emerging scenario would need to re-articulate
the federal, provincial and HEC’s role.

Federal role
The federal government is left to deal with international treaties,
education in federal territories and inter-government
coordination. Entry 16 (federal agencies/institutions for research),
entry 17 (Pakistani students in foreign countries and vice-versa),
and entry 7 (national planning and national economic
coordination of scientific and technological research) remained
unchanged. The federal government has to abolish
inter-provincial coordination e.g., inter-board committee’s and
inter-provincial education ministerial which were a part of the
federal ministry of education.
Study Notes by Aamir Mahar 20
Provincial role
The 18th Amendment redefines the role of provinces. Since its
passage in April 2011, no concrete steps are being taken by the
provinces, in particular the province of Balochistan, to deal with
the HE sector.

Challenges for provinces

The curriculum and standard of education must be competitive at
national/international levels (uniformity with national and
international standards). This would need experts especially at
the higher education level. New wings/sections have to be
established for new responsibilities and new policies have to be
approved from the cabinet or assembly e.g., Balochistan does not
have the compulsory Primary Education Legislation for
implementing article 25-A (Free and compulsory education for
children of ages 5-16 years).

The province would require specialised arrangements to respond

to the challenges confronting the HE sector. It must therefore have
in place a provincial HEC or council in line with the HEC
Ordinance of 2002 with clear composition, power and functions to
deal with the HE sector and its standards, and it must be an
autonomous body.

Legislation for special study centres

A new legislation would be required for centres of excellence, area
study centres and Pakistan Study centres devolved to the
provinces and previously working under Acts of 1974, 75 and 76.

Provision of HR and financial resources

Balochistan needs to hire new staff to perform function in the HE
sector. New wings/sections have to be established, delegation of
new responsibilities to provincial education department e.g.,
Study Notes by Aamir Mahar 21
Board of Intermediate and Secondary Education, textbook boards
setting standards for the private sector on policy and curriculum.
This may require legislation from the parliament.

The legislative and administrative capacity of the provinces and

provision of funds could be a serious challenge. The provinces
have to project financial resources required for HE. The HE sector
in Balochistan is under severe financial and HR crisis. It is not
even in a position to pay salaries to its employees. Under clause (4)
Article 167, the provinces can make plans to engage federal and
international partners to borrow/receive assistants/loans for
projects.

Impacts on HE
• The 18th Amendment Act will have a significant impact on the
HE sector nationally and provincially. At the national level, no
legal and legislative protection is given to the HEC as a federal unit.
As per Article 38 devolved,
HEC may not justify its position as a single body on HE.
• Devolution would encourage multiplicity of
standards/regulations on admissions, and minimum quality
requirement for appointment, promotion, quality assurance on
academics, curriculum and scholarships and would impact on
overall knowledge exchange.
• HE at the national level will face serious challenges on access,
quality, relevance and equity that hold fundamental positions
promoting national cohesion. HEC will also face international
challenges from international donor agencies on adopting
economic and social change essential to education innovation at
the institutional level. As devolution limits the HEC’s role in the
provincial HE sector, it would also limit its role in cross
borders/collaboration in sharing knowledge.
• The socio-economic development plan is very much connected
with the country’s HE and science and technology programmes.
Study Notes by Aamir Mahar 22
For instance the HR requirements such as doctors, engineers,
scientists and economists have to be determined at the national
level and so is the funding that comes from the federal
government. Devolution will have a negative impact on the
process of national socio-economic development provincially and
federally.

The devolution of the education sector especially Article 38 will

have a negative impact on the HE sector at the national and
provincial level as it is challenging the mandate of HEC.
The HEC and the provinces will face national/international
challenges. Article 129 (“the provincial government subject to the
Constitution, the executive authority of the province shall be
exercised in the name of governor by the provincial government
consisting of chief minister or ministers” will deeply politicise the
appointment of VCs, rectors and presidents.

Uniformity, standards/regulations compatible with the

national/international standards may not be maintained in the HE
sector in all provinces. The 18th amendment would be a failure as
far as the HE sector is concerned.

Challenges such as access, quality, relevance and equity require

further response from the HEC.

Entry 38 may have to be placed in the concurrent FFL Part II. This
requires HEC to approach the Council of Common Interest/federal
government for reconsideration by the National Assembly. The
dissenting note from Mr Ahsan Iqbal (member of the committee,
now federal minister) that Entry 38 should be in the FFL Part II is
already on record.
The HEC ordinance 2002 must be enacted from the Parliament.
The provinces need legislation for devolved subjects. There
should also be specialised arrangements responding to challenges
Study Notes by Aamir Mahar 23
confronting the HE sector e.g., administrative and resource
capacity. Policy and planning wings in the provincial education
secretariat also need to be established. Besides, the development
of autonomous bodies such as the HEC or councils is needed at the
provincial level. Heads also need to be put together to come up
with financial resources for HE.

EIGHT YEARS ON
Ahmed Bilal Mehboob

IT was eight years ago on April 19, 2010, that then president Asif
Zardari signed the Constitution (Eighteenth) Amendment Bill,
2010, into law after its unanimous passage in the two houses of
parliament. The amendment, a landmark in Pakistan’s
constitutional history, altered some 97 articles or more than
one-third of the Constitution. This was the biggest constitutional
undertaking since the historic adoption of the 1973 Constitution.

The 18th Amendment reversed the balance of power between the

president and prime minister restoring the original parliamentary
character of the Constitution. It introduced significant electoral
reforms making the Election Commission a permanent body with
fulltime members. A number of good democratic practices
including curtailment of discretionary powers of public officials
were introduced through the amendment besides cleansing the
Constitution of the marks left by successive military dictators.
The most prominent and hotly debated aspect of the amendment,
however, relates to provincial autonomy and centre-province
relations. There is a sizeable body of opinion among politicians,
political scientists, governance practitioners and the public that
the pendulum of granting greater powers to the provinces swung
too far in this endeavour, with the result that it is becoming
increasingly unworkable to run the affairs of the federation

Study Notes by Aamir Mahar 24

smoothly and effectively. An equally intense feeling resides
especially in the smaller provinces, as one reads through
parliamentary debates on the amendment, that the centre should
retain only three subjects namely defence, foreign relations and
currency.

No one can think of undoing the 18th Amendment but an honest

review is in order.

Eight years on, the debate still rages and a comment recently
attributed to the chief of army staff and subsequently at least
partly denied by the DG ISPR further intensified the debate on
what many regard as the diluted powers of the federal
government. A recent Supreme Court judgement rejecting appeals
against the validity of the Industrial Relations Act, 2012, in light of
the 18th Amendment opened up fresh avenues of interpreting the
amendment especially in relation to the federation’s international
obligations. Earlier, a decision of the Islamabad High Court
highlighted the limit of powers that the federal government can
exercise in relation to federal regulatory authorities such as
Pemra and Ogra. Approval by the Council of Common Interests
was cited as mandatory for the federal government before it even
places a regulatory authority under one ministry or the other. This
is probably why two members of the parliamentary committee on
constitutional reforms (PCCR), S.M. Zafar and Waseem Sajjad, had
termed the CCI as the ‘government in a government’.

Looking back, one should commend Asif Zardari for voluntarily

taking the bold initiative of surrendering his powers.
As Pakistanis, we can also celebrate the political process which
culminated in the passage of the 18th Amendment. The maturity
of the committee members and the spirit of cooperation with
political adversaries for a common goal prevailed throughout the
arduous journey spanning over 10 months while the PCCR met for
Study Notes by Aamir Mahar 25
some 400 hours in 77 sittings sifting through close to 1,000 public
proposals. Such democratic spirit and ability to work together
across the political divide is difficult to imagine in the current
acrimonious atmosphere.

The resolute leadership of Raza Rabbani as PCCR chairman was

the single most decisive factor in the successful conclusion of the
process. The highly complex and sensitive job of devolving 18
federal ministries and divisions to the provinces was also
completed by the implementation commission headed by its
chairman Raza Rabbani and deputy chairman Ishaq Dar within the
allotted period of one year.

While celebrating the amendment’s successes, one can also look

back and learn from some of the weak areas of the process and the
product it yielded. To begin with, the confidentiality of PCCR
proceedings was understandable to a point but cutting short the
process of public and parliamentary debate after the committee
laid its report before parliament is not understandable. The
National Assembly debated the 18th Amendment bill for just two
days and only 18 of its 342 members took part in the debate. The
quality of debate in the Senate was better as four days were
allowed for the debate in which some 60 senators participated.
Compared to this, parliamentary debate on the 1973 Constitution
continued for two months and seven days. Debate on the Eighth
Constitutional Amendment lasted for 41 days. Parliamentary
debate on the Second Constitutional Amendment lasted for two
months despite the huge pressure to hurry the process of
declaring Ahmadis as non-Muslims.

The PCCR’s composition can also be commented upon. The Senate

constitutes about 23 per cent of the total parliament but its
representation on the PCCR was more than twice this proportion.
Fifteen out of a total of 26 members of the committee or 58pc
Study Notes by Aamir Mahar 26
came from the Senate. Three mainstream parties, the PPP, PML-N
and PML-Q, which had a combined representation of around 75pc
in the two houses could field only 11pc or 42pc representatives in
the PCCR.

While the insurgency raged in Balochistan, the representatives

from Balochistan appeared to be under tremendous pressure to
achieve ‘tangible results’ to vindicate their decision to participate
in the democratic process. This, in turn, put the entire committee
and parliament under pressure. The decision to entirely abolish
the Concurrent List and making a substantive part of the federal
subjects also dependent upon the approval of CCI was probably
taken in that pressured atmosphere. These are all political
realities and one can only operate within the given realities of the
time.

The 18th Amendment and what it constitutes is a reality. No one

can think of undoing it but parliament, the political parties and
think tanks can always take stock of what the 18th Amendment
could and could not achieve in the past eight years and how the
unfinished business of its implementation can be completed
without compromising the effectiveness of the federal and
provincial governments. One should never feel shy of
self-appraisal.

LABOUR AMENDMENTS
Dawn Newspaper
THE 18th Amendment was passed in April, 2010, but a
controversy still rages: should it be rolled back? Realistically, after
a constitutional amendment, or in fact an amendment to any law,
is passed, it is difficult to reverse or nullify the same without
compelling reasons. It should also be remembered that the 18th
Amendment was formulated after comprehensive deliberations

Study Notes by Aamir Mahar 27

by a parliamentary committee, comprising members from all
parliamentary parties, to meet the long-standing demand of
provincial autonomy.

Devolving health, labour and education to the provinces through

this amendment has created issues, but not of such a magnitude
that they can’t be addressed. Take labour. The Sindh government
boasts of devolving the highest number of labour laws in
comparison with the other three provinces. While this may be so,
Sindh has made unbridled amendments to the laws, thus
jeopardising the interests of both employers and workers. It is
ironical that the 18th Amendment came about when the PPP ruled
at the centre. Now it is the PPP provincial setup that is making
such amendments, which will scare off investors.

After devolution, two categories of companies have emerged for

the application of labour laws, those which exist only in one
province and those which exist in more than one province. The
Federal Industrial Relations Act, 2012, has been enacted for the
industries located within the Islamabad Capital Territory and
trans-provincial companies.

Some key laws should go back to the centre.

Since the 18th Amendment is here to stay, I have mentioned some
key labour laws, which should remain with the provinces and at
least three which need to go back to the federal government. The
three are welfare laws and their return to the federation will not
only ensure their survival but also be instrumental in continuing
to achieve their purpose.

The Industrial Relations Ordinance, 1969: All provinces and the

centre have promulgated their respective industrial relations acts
after devolution. They are similar to each other and meet the
spirit of the 1969 ordinance. But a major difference between the
Study Notes by Aamir Mahar 28
federal and provincial acts is that there is no duration of collective
labour agreements prescribed by the former, while in the
provinces they can only be reached for a maximum of two years.
The Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968: Provinces other than Sindh have almost adopted
the 1968 ordinance; however, Sindh has not only changed its
name but also made drastic changes to it. The Sindh Terms of
Employment (Standing Orders) Act, 2015, has made it applicable
to all employees of a company including management staff, but
excluding the occupier and manager. In addition, the outsourcing
of services has been prohibited. Both these changes have negative
repercussions for industries.

Factories Act, 1934: This act was already administered by the

provinces prior to devolution, so nothing significant has taken
place. However, taking advantage of the privilege to make
amendments to the act, Sindh has prohibited the contracting out
of services and promoted absenteeism by doubling the quantum
of sick leave for workers.

Shops and Establishment Ordinance, 1969: KP has extended its act

of 2015 to establishments, to which it did not apply previously
such as educational institutions, health centres, labs, hotels,
cinemas etc. Besides, overtime limits have been made realistic as
an employee can now be engaged in such work for 24 hours per
week, which was previously 150 hours per annum. The other
provinces should also adopt this provision.

Employees Old-Age Benefits Act, 1976: If this most beneficial of

welfare laws is to survive, its status as a federal law should
immediately be restored through a constitutional amendment.
This will stop many controversies and litigation affecting the act,
bringing relief to pensioners.

Study Notes by Aamir Mahar 29

Companies’ Profits (Workers’ Participation) Act, 1968 and
Workers’ Welfare Fund Ordinance, 1971: As KP and Balochistan
have fewer industries, they, along with Punjab, continue to be
governed by the act of 1968 as they have not devolved it. Only
Sindh has done so, giving rise to controversies and litigation in the
superior courts. The bulk of money collected under both
enactments goes to the welfare fund constituted under the 1971
ordinance.

Prior to devolution, these funds were collected by the FBR and

would then be transferred to the provinces according to
prescribed ratios. The money generated was supposed to be spent
on the construction of houses for workers, their education,
training, re-skilling and financing of other welfare measures for
them. This process has been discontinued since 2010, and
requires immediate revival. Let these two laws also be transferred
to the centre through the same constitutional amendment as that
for the EOBI.

Study Notes by Aamir Mahar 30