18th Constitutional Amendment
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9. 58 (2b) is repealed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
EFFECTIVE IMPLEMENTATION OF18TH CONSTITUTIONAL AMENDMENT
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 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.
18TH AMENDMENT: ITS IMPLICATIONS FORFEDERALISM AND IMPACT ON PROVINCES
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 6
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).
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
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.
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 24
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.
LABOUR AMENDMENTS
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 28
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
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.
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.
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