Eighteenth Amendment Revisited i Eighteenth Amendment Revisited i CONTENTS Acknowledgements Acronyms Introduction i Welcome Address Dr Maqsudul Hasan Nuri 1 Opening Remarks Ms Sarah Holz 3 Inaugural Address S. M. Zafar 4 Concluding Remarks 8 Shahid Hamid CHAPTER I 18th Amendment Revisited Muhammad Hanif & Muhammad Nawaz Khan 10 Challenges to Independence and Sovereignty of Parliament in Pakistan Ahmed Bilal Mehboob & Hamza Ijaz 50 Balance of Power at the Centre: The President, Prime Minister and Parliament Amjad Abbas Khan 64 CHAPTER II 18th Constitutional Amendment & Need for Passage of the 19th Constitutional Amendment Babar Sattar 74 Will Enhanced Powers of Judiciary Stop Future Military Takeover in Pakistan? Dr Iram Khalid 88 CHAPTER III 18th Amendment and New NFC Award: Implications for Pakistan’s Economy 106 Dr Ashfaque H. Khan ii IPRI Book Does Amended 1973 Constitution Provide a Mechanism to End Corruption and Ensure Economic Security of Pakistan? Dr Pervez Tahir 110 18th Amendment: Financial Impact on Provinces Dr Razia Sultana 129 CHAPTER IV Challenges of Devolution of Power to the Provinces Zafarullah Khan 136 After 18th Amendment: Federation and Provinces Akbar Nasir Khan 141 Impact of 18th Amendment on Resolving the Issue of Balochistan Dr Naheed Anjum Chishti 148 CHAPTER V Constitutional Provisions on Creation of Provinces and Suggested Model Dr Razia Musarrat 155 Adverse Implications in Creation of New Provinces in Pakistan Dr Syed Hussain Shaheed Soherwordi 169 CHAPTER VI Significance and Required Structure of the Local Governments Mr Shahid Hamid 178 Devolution of Financial Resources to the Local Governments Dr Zafar Mueen Nasir 187 Contributors 197 Index 200 IPRI Publications 206 Eighteenth Amendment Revisited iii ACKNOWLEDGEMENTS This volume is based on papers presented at the two-day National Conference on “Eighteenth Amendment Revisited”, jointly organised by the Islamabad Policy Research Institute (IPRI), Islamabad and Hanns Seidel Foundation (HSF), Germany on June 28-29, 2011, at Auditorium of National Library, Islamabad. The organizers of the conference are especially thankful to Dr Martin Axmann, Resident Representative and Ms Sarah Holz, Programme Coordinator, HSF, Islamabad for their co-operation and sharing the financial expense on the conference. For the papers presented in this volume, we are grateful to all participants as well as the chairpersons of the different Sessions. We are also thankful to the scholars, students and professionals, whose participation made the discussion lively and instructive. The success of the conference owes much to the efforts and logistical support provided by the staff of the IPRI and the HSF. We deeply regret that this volume could not be produced within the stipulated time due to some unavoidable circumstances. Finally, our thanks are due to all those whom it would not be possible to thank individually for their help in making the conference a success. iv IPRI Book ACRONYMS PPP Pakistan Peoples Party CCI Council of Common Interest FATA Federally Administered Tribal Areas FCR Frontier Crimes Regulation KPK Khyber Pakhtunkhwa AL Awami League NAP National Awami Party JUI Jamiat Ulemai-e-Islam NFC National Finance Commission LFO Legal Framework Order US United States BNP Balochistan National Party JIP Jam’at-e-Islami Pakistan NP National Party PPP-S Pakistan Peoples Party-Sherpao NPP The National Peoples Party PKMAP Pakhtoonkhwa Milli Awami Party JWP Jamhoori Watan Party PML-N Pakistan Muslim League Nawaz PML-Q Pakistan Muslim League Quaid-i-Azam MQM Muttahida Qaumi Movement NEC National Economic Council PAC Public Accounts Committee RCO Revival of the Constitution 1973 Order CMLA Chief Martial Law Administrator EOBI Employees Old-age Benefits Institution VAT Value Added Tax IMF International Monetary Fund PCCR Parliamentary Committee on Constitutional Reform CPI Corruption Perception Index ICCPR International Covenant of Civil and Political Rights GB Gilgit Baltistan AJK Azad Jammu and Kashmir HQM Hazara Qaumi Movement NGO Non-governmental Organization MNAs Members of National Assembly MPAs Members of Provincial Assembly Eighteenth Amendment Revisited v PLGC Provincial Local Government Commission TMAs Tehsil Municipal Administration EDO Executive District Officer CCBs Citizen Community Boards CoD Charter of Democracy GST Goods and Services Tax NRO National Reconciliation Ordinance PCO Provisional Constitutional Order Eighteenth Amendment Revisited i INTRODUCTION Dr Maqsudul Hasan Nuri, Muhammad Hanif and Muhammad Nawaz Khan his book presents the proceedings of a two-day national conference on “Eighteenth Amendment Revisited” jointly organised by the T Islamabad Policy Research Institute (IPRI), and Hanns Seidel Foundation (HSF) Islamabad on June 28-29, 2011. Prominent scholars, academicians, senior public servants, lawyers and politicians from all over Pakistan participated in the conference. The conference was held in the National Library Auditorium. The objective of the conference was to have an in-depth review of the 18th Amendment to the 1973 Constitution and study how truly and to what extent it has restored the federal and parliamentary structure of the government as envisaged in the original document, identify the difficulties and bottlenecks in its implementation and guide the federation and its units in bringing about the transformation that it lays down to bring about. This would need going into the evolution of the constitutional process over the years and the factors that affected its course to the present historic constitutional reforms. A country’s constitution embodies the set of rules which its people have agreed to live by and enshrines the basic principles they have formally decided to be governed under as a nation state. The constitution is not a rigid document and is amenable to amendments through a set procedure if the society to be responsive to the needs of the time so wants. The constitution of a federation determines the principles and rules that govern the overall relationship between the units and the federal government. In a democratic polity, the constitution defines the rules for the smooth running of the government structures and state institutions with necessary checks and balances. An independent judiciary watches over to ensure their compliance and to see that all organs of the state heed the fundamental law of the land and function within its confines. The process of constitution making started late in Pakistan which caused a number of serious problems that the country is still struggling to solve. Pakistan was beset with the shock of the early death of its founder Quaid-i-Azam Muhammad Ali Jinnah in 1948 and assassination of its first Prime Minister, Liaquat Ali Khan, soon thereafter in 1951. Pakistan was ruled by a shaky political structure under a Muslim League that had lost its earlier cohesiveness, lacked the maturity and political sobriety that constitution making demanded. In the first decade of its existence the political life of the resource strapped state was vitiated by the rise of strong regional parties, ii IPRI Book agitating for provincial rights and religious groups demanding an Islamic dispensation for the country. The country’s unique geography with two wings, a thousand miles apart, and the eastern wing as a single unit commanding population majority contrasted with the western wing’s four ethnic provinces created a clash of interests in the overall power politics. From these and other related factors, the prospects of framing a constitution that could hold the varied political and economic interests in a just equilibrium grew dimmer. A constitutional crisis was engendered that could linger on and remain unresolved for a quarter century till the country produced its third constitutional document in 1973. However, the consensus that was achieved to frame this constitution could only come after the country got dismembered in 1971. The 1973 Constitution has survived through nearly four decades of political upheavals. It remained suspended or was partially revived under two long military regimes of Generals Zia ul Haq and Pervez Musharraf with short and shaky civil intermissions of Benazir Bhutto and Nawaz Sharif’s governments. It was preceded by earlier constitutional exercises namely the 1956 and the 1962 Constitutions. The former had a parliamentary structure based on the British model whereas the latter, framed under the martial law regime of Field Marshal Ayub Khan, gave the country a presidential system. The 1973 Constitution, framed by an elected government, returned the country to a parliamentary dispensation. However, soon after promulgation, it underwent a number of amendments instituted by its own author, Zulfiquar Ali Bhutto, followed by those instituted by General Zia ul Haq, Nawaz Sharif and General Pervez Musharraf. These amendments altogether, 17 in number, resulted in transforming the state structure into a hybrid of presidential and parliamentary forms with characteristics of a unitary dispensation, as opposed to the federal structure initially proposed in the original document. As a result of the general elections held by General Pervez Musharraf in 2008, the Pakistan Peoples Party (PPP) came into power. General Pervez Musharraf resigned from his office and Mr Asif Ali Zardari was elected as President. After assuming power, the PPP government constituted a Constitutional Amendment Committee in 2009 to recommend a package of amendments in order to restore the 1973 document to its original shape