“The 18th Amendment: An Overview” chapter by Raza Rumi was published in Jinnah institute report titled Devolution: Provincial Autonomy and the 18th Amendment

Rumi writes: The secession of Bangladesh in 1971 convinced provinces of the urgency of drafting a constitutional scheme that would provide equal opportunities to smaller federating units. The 1973 constitution made strides towards addressing this inequity of legislative powers and resources between the federation and its provinces, but years of military rule exacerbated feelings of deprivation. The district government devolution scheme introduced by General Musharraf in the early 2000s inadvertently underscored the importance of devolution as a means of empowering excluded voices. After the return of democratic government in 2008, devolution was embraced by all major the political parties and it resulted in the passage of the 18 Amendment to the Constitution in 2010. While devolution had been anticipated for many years, the provinces were ill-prepared for it when it happened. As a result, significant human resource related challenges were faced in the implementation process. Although devolution has resulted in the transfer of several federal ministries and their mandates to provincial governments, the gradual reincarnation of devolved ministries and organizations at the federal level has cast doubt on the commitment of the federation to the process of devolution.

An estimated 40 per cent of the world’s population currently lives under some form of federal structure where a well-defined division of power exists between the centre and its federating units. While the centre wields the majority of the power in most federal states, provisions for equality and fair resource distribution among federating units are strongly emphasised in constitutional discourse.

Pakistan’s history is replete with efforts to grapple with federalism and balance power between the centre and its provinces. Right from the inception of the state, an inequality in income and service distribution amongst provinces caused smaller federating units to regard the federation and larger provinces with suspicion. The constitutions of 1956 and 1962 prescribed a strong centralised federal government and very little provincial autonomy. The introduction of the ‘One Unit’ scheme in 1954 weakened the legitimate ascendancy of what was then East Pakistan, and fuelled feelings of alienation amongst the smaller provinces. This crisis manifested in the secession of East Pakistan in 1971 and contributed to continued unrest in North West Frontier Province (now Khyber-Pakhtunkhwa) and Balochistan. Further, it convinced the provinces of the urgency of drafting a constitutional scheme that would give equal opportunities to smaller federating units.

Against this backdrop, the Constitution of 1973 was a major effort in addressing the distribution of legislative powers and resources between the federation and its provinces. Unanimously passed, the 1973 Constitution envisaged two distinct arrangements for legislative allocation: a federal legislative list over which the federal government would exercise sole authority; and a concurrent list of 47 subjects on which both federal and 3 provincial governments could legislate. All remaining subjects were termed residuary and fell under the jurisdiction of the provinces.

The constitution also strived to address the challenges of equitable resource distribution through two institutions – the National Economic Council (NEC) and the National Finance Commission (NFC). The former was intended to review and provide advice on financial, economic and social planning and policies. The latter was conceived as a body that would distribute resources between the federation and the provinces from a pool of tax receipts.

Despite these changes, the centre retained the upper hand in legislation, and the subsequent lengthy tenures of Generals Zia-ul-Haq and Pervez Musharraf exacerbated feelings of deprivation in the smaller provinces. The NEC and the NFC were deemed incapable of safeguarding resource distribution for the smaller provinces since they were both recommending bodies without any real power.

Moreover, duplication was a major consequence of the 1973 Constitution. Ministries and departments with near identical mandates were operating at both the federal and provincial levels hence doubling financial burdens and impeding efficient service delivery.

The Process Leading to Devolution

During the 1990s, the federal government continued to wield power over the provinces. In the 2000s, the decade-long authoritarian regime of General Musharraf further confined all major decision-making to an extremely limited sphere within the federal government, adding fuel to the fire of provincial frustrations. Like previous military rulers, Musharraf sought to circumvent political parties and gain legitimacy by introducing local-level governments. While this experiment in devolution failed to achieve either of those objectives, it brought home the importance of devolution as a means to empower excluded voices. The worsening law and order situation in Balochistan and Khyber-Pakhtunkhwa added to the sense of frustration in the smaller provinces.

It was, therefore, not surprising that the 2008 election manifestos of all the major political parties unanimously suggested a deepening of devolution by re-allocating several federal-level functions to the provinces. This political th consensus resulted in the 18 Amendment to the Constitution which was passed with the support of all the political parties in 2010.

The 18 Amendment provided a fixed time frame for a transition, setting the deadline of 30 June 2011 for the completion of the process. Accordingly, an Implementation Commission was constituted on 4 May 2010 to spearhead the process. The commission was responsible for ensuring the smooth transition of governance systems and structures. The measures it took included the revamping of the National Economic Council, amending the rules of businesses for provincial governments that enabled them to deal with devolved subjects, redrafting amended laws, taking new oaths from provincial assembly speakers and establishing new rules and procedures for the Council of Common Interests (CCI). To these ends, the commission held 68 meetings over a period of 11 months with relevant federal and provincial government entities.

The Legal Framework of the 18 Amendment

The 18 Amendment included 102 amendments to various sections of the Constitution including the deletion of the Concurrent Legislative List and the addition of subjects to Part II of the Federal Legislative List. The amendment strengthened and expanded the purview of the CCI by transferring some of its items from Part I and adding new items to Part II of the Federal Legislative List.

The amendment also aimed to strengthen the NEC by enhancing provincial representation within the body. Another landmark provision the included in the 18 Amendment restrained the ability of a court of law to give validity to any act of high treason that would disrupt the Constitution, hence preserving the right of fair trial and the right to information. The amendment also renamed the North West Frontier Province as KhyberPakhtunkhwa and attempted to safeguard the right of free and compulsory education for all children between the ages of five and sixteen through the insertion of Article 25-A.

Phased Devolution

To ensure the completion of devolution within the prescribed time frame, the commission decided to devolve ministries to the provinces in three 6 phases. In the first phase, five federal ministries were abolished on 7 December 2010, including the Ministry of Local Government and Rural Development, the Ministry of Population Welfare, the Ministry of Special Initiatives, the Ministry of Youth Affairs and the Ministry of Zakat and Ushr. A majority of their functions were abolished at the federal level, and those that remained were reallocated to different divisions within the federal government.

The second phase of ministries devolved on 5 April 2011 and this phase included the Ministry of Culture, the Ministry of Education, the Ministry of Livestock and Dairy Development, the Ministry of Social Welfare and Special Education and the Ministry of Tourism. The functions of these ministries were either assigned to various provincial governments or reallocated within the federal government. In essence, this was a devolutionary rollback, since similar subjects were being allocated to different federal government ministries and departments under different names after being devolved to the provinces.

The third and final phase of devolution was undertaken on 29 June 2011 when seven ministries were abolished effective from 1 July 2011. The ministries devolved included the Ministry of Environment, the Ministry of Food and Agriculture, the Ministry of Health, the Ministry of Labour and Manpower, the Ministry of Minorities Affairs, the Ministry of Sports, and the Ministry of Women Development.

During this process, a total of 201 functions, institutions and organisations were devolved to the provinces, re-allocated within the federal government or, in rare cases, abolished altogether. Of these, 103 functions, organisations or institutions were devolved to the provinces.

Devolution in Practice

During 2010-11, a detailed roadmap for devolution within 34 federal ministries and divisions was finalised by the implementation commission through federal level deliberations, followed by in-depth interaction with all provincial governments. A series of meetings were held with all provincial chief secretaries as well as other concerned secretaries to assess the preparedness of the provinces in taking up their newly assigned role.

Punjab

An implementation and coordination department was designated at the provincial level to look after all affairs related to devolution. Functions and institutions devolved to Punjab included regional training institutes from the Ministry of Population Welfare, the National Education Equipment Centre, six area study centres and centres of excellence from the Ministry of Education, 25 archaeological and heritage sites from the Ministry of Culture, six tourist information centres from the Ministry of Tourism, 21 social services medical centres, and four development projects from the Ministry of Social Welfare, the Soil Survey of Pakistan from the Ministry of Agriculture and a wide range of functions from a host of devolved organisations.

Khyber-Pakhtunkhwa

 In order to facilitate the process of devolution, a workshop was arranged in July 2010 to sensitise all stakeholders to the importance, implications and likely challenges of devolution. The workshop acted as a catalyst, spurring the concerned departments and agencies to propose concrete recommendations for action. A detailed position paper was also developed for the province by the federal inter-provincial coordination department. Rules of business were reviewed and notifications were issued to announce the changes. Specifically, bills on compulsory education and curriculum were initiated, drafted and submitted to the provincial cabinet for approval and another bill for the promotion of the local language was developed and adopted.

Sindh

Like the other provinces, the Sindh government also established committees comprising of senior cabinet ministers that would provide strategic direction on devolution. New functions and institutions devolved to the provincial government included the Dawood College of Engineering & Technology, the Sindh Madressat-ul Islam, the Central Board of Film Censors, the Quaid-e-Azam House Museum, the Pakistan Institute of Tourism and Hotel Management, the Jinnah Postgraduate Medical College, the National Institute of Child Health, the National Institute of Cardiovascular Diseases and labour administration training in Karachi, among others.

Balochistan

A dedicated department for inter-provincial coordination was established at the provincial level to provide support to the process of devolution. One of the major challenges faced by the Balochistan government was sensitising the federal government and the implementation commission to the particular situation of the province – namely the challenges presented by extreme distances and a scattered population. These challenges were bound to have implications on Balochistan’s handling of devolved portfolios.

Although the provinces had generally anticipated a reconfiguration of the federal-provincial relationship for decades, the levels of preparedness needed to cope with changes were unevenly spread. The reallocation of human resources also presented a serious challenge. Despite these obvious difficulties, the provincial governments have made highly satisfactory progress, and at the time of writing, all relevant ministries have already been devolved from the federal level. To a large extent, the relocation of human resource has also been completed and the provinces have received ownership of the majority of federally run development projects. The resource transfer process has also stayed on track as per the 18 Amendment. However, capacity constraints within provincial governments and a disturbing tendency of the federal government to revive devolved ministries under different names represent some of the major challenges that still confront the process.

Post-Devolution Issues

Realigned Relationships

The relationship between the centre and the provinces in Pakistan has historically been marked by distrust, doubt, undue competition and th outright animosity. However, the passing of the 18 Amendment has had a major impact on this relationship in a number of ways. The removal of the Concurrent Legislative List has increased the purview of provincial legislative powers. The reconfiguration of the NEC as the supreme constitutional body for defining economic and financial relationships between the centre and the provinces has also been received as a positive development. The 18th Amendment has empowered provinces to raise domestic and foreign debt in mutual agreement with and the approval of the NEC. As a joint apex forum, the NEC has also been mandated to oversee and monitor the implementation of its decisions and receive progress reports. The amended mandate of the NEC will also ensure that provincial shares in any NFC award in the future will not be less than the previous award.

Overlapping Jurisdictions

While devolution and the abolition of the Concurrent Legislative List resulted in the transfer of federal ministries and their mandates to the provincial governments, a gradual reincarnation of devolved ministries and organisations at the federal level has cast doubt on the commitment of the federation to the process of devolution.

The federal government created eight new ministries and divisions less than nine months after the abolition of devolved ministries, including the Ministry of National Harmony, the Ministry of Human Development, the Ministry of Professional and Technical Training, the Ministry of National Heritage and Integration, the Ministry of National Disaster Management, the Ministry of National Regulation and Services, the Ministry of National Food Security and Research and the Capital Administration and Development Division.

The expenditure incurred in the creation of new ministries and divisions reversed the efficiency and resource-savings that had resulted from the closure of federal ministries. In the future, a more damaging outcome may be a turf war resulting from overlapping jurisdictions. It is highly likely that after the duplication of these divisions at the federal level, both the federal and provincial governments will be legislating and managing similar subjects, leading to conflict and wastage of resources.

Similarly, the future of devolved autonomous bodies such as large public hospitals in Karachi and Lahore remains in flux. Provincial government agencies complain that the senior leadership of these hospitals is not prepared to be guided by the policies and direction of the provincial government.

Another area of likely conflict pertains to employees who have been moved from the federal to provincial domain. For now, the federal government and the implementation commission have adopted the convenient course of action of transferring employees on deputation basis. It is highly likely that many of these employees will attempt to return to their original institutions. The recreation of institutions at the federal level in place of those devolved to the provincial level will only encourage such efforts. In such a situation, conflicting hierarchies and competing chains of commands can and will frustrate the working of various agencies.

Capacity Constraints

The process of devolution has affected a total of 61,231 federal government employees who have been placed in surplus pool, readjusted within the federal government, transferred to provincial governments, or temporarily deputed under Section 10 of the Civil Servants Act. As a policy decision, not a single employee has been downsized and efforts have been made to curb recruitment for vacant positions until all affected employees have been readjusted.

However, matching job requirements and available human resources has been a difficult task. In many cases, employees have opted to join the surplus pool so they can stay in the federal government rather than join a provincial government. Uncertainty about the career prospects of federal civil servants is likely to adversely affect their morale and productivity. Many organisations also lack the technical capacity to undertake newly assigned functions and rather than developing a dedicated and well-trained cadre, the provincial governments have taken short term and ad hoc measures to fill vacant slots. This may prove counterproductive in the long run.

The Fiscal Cost of Devolution

The estimated cost of devolution is expected to be Rs363 billion, and this figure includes employee related expenditures, relocation costs, finances needed for the continued implementation of devolved portfolios, and 7 hardware and material mobilisation costs. In terms of the development expenditure, the implementation commission identified a total of 232 projects under the ministries that were to be devolved. Of these, only 166 8 have been devolved to the provinces as of 2012. The total liabilities from these devolved projects have been estimated at Rs. 202.3 billion until their completion.

A number of issues relating to the financial aspects of the 18th Amendment remain unresolved. For instance, revenue distribution has preceded the assignment of expenditure responsibilities, which means that shares and distribution formulae between the federation and the provinces were worked out on assumptions that may have lost relevance after devolution. Another anomaly pertains to the federal government being made to bear some expenditure irrespective of the reallocation of responsibilities and the provinces having been assigned functions without a corresponding and appropriate transfer of resources. Issues yet to be settled include employees’ accumulated resources in the erstwhile Ministry of Labour, such as the Workers Welfare Fund and the Employees Old Age Benefit Institutions. An estimated Rs. 80 billion is still retained by the federal government as it attempts to resolve these disputes with the the provinces. The finance and resource related issues arising from the 18 Amendment will require sustained and serious attention in the coming years to ensure the success of devolution.