CONTEXTUALISING ADMINISTRATIVE AND FISCAL DECENTRALISATION: THE 18TH CONSTITUTIONAL AMENDMENT It is said that the most significant clause

of a constitution is its amending clause (Levinson 1995). Constitutions are living documents they evolve over time through various amendments that enunciate collective decisions on key issues. The 18th Amendment to the Constitution of Pakistan, passed in April 2010, is one such historic amendment. It is important, primarily, for three reasons. First, it restored the parliamentary character of the Constitution of Pakistan by undoing several key changes made by military dictators, such as, the powers of the President. Second, it redefined the parliament-judiciary relationship by proposing parliamentary oversight on the appointment of judges in the Supreme Court and the High Courts. Third, it devolved many important functions to the provincial governments by abolishing the Concurrent Legislative List in the Constitution and by amending the Federal Legislative List. Of particular importance is the devolution of responsibility and the authority to the provinces. It provides the context in which the provincial governments are amending laws, establishing new institutional frameworks, developing policies and strategies and building capacity to effectively execute their newly acquired responsibilities. These provisions in the Amendment, therefore, need to be examined in detail. However, implementing the Amendment has been quite a challenge in the face of covert and overt opposition from the federal bureaucracy, which is characteristically averse to any transfer of resources and authority. For example, several functions of the Federal Ministries were dissolved in the
This technical note was written by ASP consultant Dr Muhammad Ahsan Rana at the Lahore University of Management Sciences to serve as basis for class discussion rather than to illustrate either effective or ineffective handling of an administrative situation. This material may not be quoted, photocopied or reproduced in any form without the prior written consent of the Lahore University of Management Sciences. This research was made possible through support provided by the United States Agency for International Development. The opinions expressed herein are those of the author(s) and do not necessarily reflect the views of the US Agency for International Development or the US Government.

2013 Lahore University of Management Sciences

10-007-2013-2 aftermath of the Amendment but were assigned to other Federal Ministries instead of being devolved to the provinces. A critical examination of the horizontal as well as vertical transfer of such functions is needed to understand the nature and extent of the devolution of authority under the Amendment. This paper is a detailed examination of the 18th Amendment, particularly of the devolution of powers and functions to the provincial governments. It is divided into six sections. Section 2 provides a brief history of federalism in Pakistan. It discusses key provisions from the 1935 Act, the Constitution of 1956 and the Constitution of 1962, that defined federal-provincial relations in Pakistan. Section 3 provides an overview of the 18th Amendment. It briefly examines the reduction of certain powers of the President, the new process for appointment of judges, provisions regarding political parties, addition to fundamental rights, formation of caretaker governments, etc. The enhanced role of the Council of Common Interests (CCI), abolition of the Concurrent List and changes to the Federal List and provisions regarding the National Finance Commission (NFC) are discussed in detail in Section 4. Section 5 examines the implementation challenge. Three sectors, viz. education, health and agriculture are selected to examine how far the Federal Government has transferred various functions to the Provincial Governments after the abolition of these ministries and in pursuance of the Amendment. Section six concludes the paper. HISTORY OF FEDERALISM IN PAKISTAN At the time of the establishment of Pakistan in 1947, the Government of India Act of 1935 1 was adopted, with some amendments, as the interim constitution for the state of Pakistan. The Act, which remained in force for the first nine years of Pakistans existence, provided a federal governance framework 2 and enunciated separate legislative powers for the federation and its constituent units (called Governors Provinces). Sections 99 and 100 provided three legislative lists, viz. the Federal List, the Concurrent List and the Provincial List. The subjects listed as concurrent fell under the joint legislative control of the Federal and the Provincial Governments. The Federal List had 59 items, the Concurrent List had 36 items and the Provincial List had 54 items. The Act also provided for, sharing of tax revenues between the federation and its constituent units. An Intra-Provincial Council was also created

1 2

See Rizvi 2002 for text of various Constitutions. Section 5 of the amended 1935 Act

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10-007-2013-2 under Section 135 to resolve disputes, if any, between the federation and provinces or amongst the provinces themselves. After nine years of deliberations and political negotiations, the Constituent Assembly finally adopted a new Constitution in 1956. The 1956 Constitution also provided for a federal parliamentary governance structure for Pakistan (Article 1). Article 43 created a unicameral parliament and Article 44 specified the number of seats at 300. The Constitution recognised the concept of One Unit 3 and the seats in the parliament were equally divided between East and West Pakistan, with 10 seats reserved for women. Article 106 divided subjects into three legislative lists, viz. the Federal List (30 items), the Concurrent List (19 items) and the Provincial List (93 items). Most of the items, with greater significance, were either in the Federal List or in the Concurrent List (Rabbani, 2011). The Constitution created a National Economic Council comprising of four federal ministers and three ministers from each province. It also created a National Finance Commission (NFC) to make recommendations regarding the distribution of resources between the federation and the provinces. However, the commission could only make recommendations; they were not binding on the Federal Government. Despite its federal and democratic character, the 1956 Constitution had two important centralising features; first, Article 109 specified that the residual powers, i.e. the power to legislate on subjects not included in any of the three lists, will be vested in the Federal Government. Second, Article 92 required the governors recommendation before introducing a bill or amendment regarding a matter specified in a money bill or one that would involve expenditure from the provincial revenue. Since the governor was a federal nominee, this effectively constrained provincial authority to legislate freely. Further, there was no mention of dispute resolution by an independent forum, such as the Inter-Provincial Council of the 1935 Act. Instead, the Constitution required the Chief Justice of Pakistan to mediate in case there was a dispute between the two provinces or between the federation and the provinces. The Constitution of 1956 had a short life, since martial law was imposed in October 1958. Ayub Khan introduced a new Constitution in March 1962, which was a poor mix of the 1935 Act and the 1956 Constitution. Article 1of the new Constitution deleted the word Federal

A new province with the name West Pakistan had been created in 1954 by merging Punjab, Sindh and NWFP, and states and tribal areas of the Western Wing.

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10-007-2013-2 from the name of the country4 and Article 70 created two separate assemblies for East and West Pakistan, which were granted parity in all federal matters. The Constitution provided for a unicameral federal legislature with 156 members equally divided between the two provinces (six seats reserved for women). The 1962 Constitution provided only one list (Third Schedule) containing 43 subjects on which the Central Government could exclusively legislate. Article 132 vested the residual powers with the provinces. Vesting residual powers in the provinces was an important step in decentralising authority and responsibility, but two provisions of the Constitution effectively constrained provincial authority. First, Article 131 empowered the Central Legislature to make laws in the national interest of Pakistan on matters of national security, economic and financial stability, and planning and coordination. This was an open-ended provision and created an allowance for the Central Government to regulate even those matters that were not included in the Central List. Second, Article 74 declared that in case of a conflict between the Governor (a federal nominee) and a provincial assembly, where the conflict was decided in favour of the Governor by the National Assembly, the Governor could dissolve the provincial assembly with the consent of the President. Rather than referring the conflict to a non-partisan forum or one comprising of representatives of both parties, the Central Government became a judge in its own right. Further, the National Economic Council was to be nominated by the President, with no specific provision for provincial representation. The 1962 Constitution was immediately abrogated by the new military government when it took over power in 1968. Elections were held in 1971 and the National Assembly took up the task of framing a new constitution for the new Pakistan in 1972. The new Constitution unanimously passed in April 1973 clearly enunciated the federal character of the state in its preamble as well as in Article 1, which declared Pakistan a Federal Republic. It created a bicameral Parliament, comprising of the National Assembly, Senate and the provincial assemblies for each province. There were to be three tiers of government: federal, provincial and local. The Fourth Schedule to the Constitution contained two lists: the Federal Legislative List and the Concurrent Legislative List. The Federal List was divided into Part I and Part II, which had 59 and 8 items respectively. The Concurrent List had 47 items and all residual matters were deemed to be vested in the provinces. The provinces could legislate on

The word Islamic was also dropped, but it was brought back through the 1st Amendment in 1963 and Pakistan became Islamic Republic of Pakistan.

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10-007-2013-2 any subject which was not included in the Federal List. However, in case of a clash between a federal law and a provincial law on a subject in the Concurrent List, the federal law was to prevail (Article 143). Further, Article 144 of the Constitution allowed the Federal Government to legislate, even on a residual subject, provided a specific request to this effect was made by at least two provincial assemblies. However, in case of such a legislation, a province could at any time annul or amend the federal legislation to the extent of such province. The administrative relations between the federation and provinces were dealt with in Part V of the Constitution. The most important feature of this relationship was the CCI, which provided for joint decision making by the federation and provinces on certain matters. It comprised of the Chief Ministers of the provinces and an equal number of members from the Federal Government, who were nominated by the Prime Minister. The Council was to formulate policies and resolve conflicts on all the matters in the Federal Legislative List Part II and on electricity (the only item from the Concurrent List). This was a radical departure from the earlier Constitutions, which had reserved for the federation, the exclusive legislative rights on subjects in the Federal List. In case the Council failed to reach a decision or the Federal or a provincial government was dissatisfied with a decision, the matter was to be referred to the joint sitting of the Parliament for a final decision. To decide important economic matters, a National Economic Council was constituted comprising of the Prime Minister and other members nominated by the President. Article 160 created a National Finance Commission (NFC) comprising of finance ministers of the Federal Government and provincial governments and other such members appointed by the President. The NFC was entrusted with the task of making recommendations regarding, the distribution of revenue between the Federal and Provincial governments, making of grant-in-aid to provincial governments and the exercise of borrowing powers of the federal government and provincial governments. Over the years, the 1973 Constitution was amended by both democratically elected as well as military governments. Of particular importance are the 8th Amendment and the 17th Amendment, introduced respectively, by General Zia and General Musharraf during their tenures. Both distorted the parliamentary and the federal character of the Constitution. However, much of this was undone by the 18th Amendment.

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10-007-2013-2 OVERVIEW OF THE 18TH CONSTITUTIONAL AMENDMENT The 18th Amendment sought to comprehensively 5 amend the Constitution. It not only restored its parliamentary character but also resolved several other emerging issues, such as the renaming of NWFP, appointment of judges and strengthening of certain key constitutional offices. For the sake of convenience, various provisions of the Amendment can be grouped together in five categories: 1) Restoration of parliamentary form of government; 2) Strengthening key institutions; 3) Appointment of judges; 4) Federation-provinces relations; and 5) Miscellaneous (see Appendix A for a summary). A brief discussion follows. Restoration of the Parliamentary Form of Government The 17th Amendment had transferred several key functions to the President and had greatly enhanced his powers vis a vis the parliament and its executive arm. Thus the President was no longer a titular head, as originally envisaged by the 1973 Constitution. The 18th Amendment repealed the 17th Amendment in its entirety6 and also declared illegal the various Legal Framework Orders of 2002. The Presidents powers were reduced in several ways. For example, before the Amendment, the executive authority of the Federation was vested in the President, who could exercise such authority, either directly or through officers subordinate to him (Article 90). The amended Article clearly states that the executive authority of the Federation is to be exercised by the Federal Government and that the Prime Minister shall be the Chief Executive of the Federation. Rules of business are also to be framed by the Federal Government and not the President. The power of the President to delay the Assembly session after the elections and/or to appoint at his discretion a member of the National Assembly as the Prime Minister (who in his opinion was likely to command the confidence of the majority of members) was abolished. Now, the Assembly must meet 21 days after the elections and elect a Prime Minister, who the President must call upon to take up the office of the Prime Minister. Similarly, an amendment to Article 232 reduces the Presidents power to impose a state of emergency in a province. Under the amended Article, a proclamation of emergency may be issued only after a resolution to this effect has been passed by the concerned Provincial
5

Hamid (2010) notes that the comprehensive nature of the Amendment was necessitated by the need to develop consensus. 6 Though some provisions were reintroduced through the 18th Amendment.

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10-007-2013-2 Assembly. If the President has to act on his own discretion, the proclamation has to be placed before the Parliament for approval by each House within ten days. Failing to get such an approval, the declaration shall cease to be effective upon two months of its pronouncement. Fundamental Rights can still be suspended during an emergency under Article 233.However, every such order has to be placed before each House of the Parliament separately, thereby giving the Senate a key role in protecting the rights of the provinces. Article 58 was also amended to delete the infamous 2(B), which empowered the President to dissolve the National Assembly at his discretion if a situation arose in which the Government could not act in accordance with the provisions of the Constitution. After the deletion of 58 (2(b)) and the amendment of 58 (1(a)), the National Assembly can only be dissolved under certain conditions. These conditions include; on the advice of the Prime Minister or when a vote of no-confidence has been passed against him and when no other member of the assembly commands the majority of the members as ascertained in a session so summoned. The President still reserves the right to be informed on all matters of internal and foreign policy, but he has to act on the advice of the Prime Minister (and his Cabinet) in all important matters. The President now appoints Governors, Chairman Federal Public Services Commission and Services Chiefs on the advice of the Prime Minister, which is binding. Further, time limits have been specified for the President to act on the advice of the Prime Minister. The period during which the President has to grant his assent to a bill passed by the Parliament has been reduced to 10 days. The Presidents power to refer a question to referendum, at his discretion, has also been removed. Similar powers of the Governors in the provinces have also been reduced. Strengthening Key Institutions The 18th Amendment has greatly strengthened two key constitutional institutions, viz. the Auditor General of Pakistan and the Election Commission of Pakistan. The Auditor General has been granted a fixed term of four years (Article 168), whereas previously the term was to be determined by the Parliament through an Act. Other terms and conditions of his service are to be determined by the Parliament. Further, the amended Article 168(6) makes it mandatory for the President to appoint the most senior officer in the office of the Auditor General, as the Auditor General of Pakistan.

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10-007-2013-2 In a similar manner, provisions regarding the appointment and functioning of the Election Commissioners have been amended to grant the office greater operational autonomy. The term of office of the Chief Election Commissioner (CEC) has been increased from three years to five years. Previously, the President could appoint the CEC at his discretion, but now the Amendment prescribes a transparent procedure for the appointment. The amended Article 213 requires the Prime Minister to forward three names to a Parliamentary Committee after consulting the leader of the opposition in the National Assembly. The Parliamentary Committee is to be constituted by the Speaker. It comprises of at most twelve members 50% from the treasury and 50% from opposition parties-who are to be nominated by various parliamentary party leaders in the Assembly, based, on their respective strength in the Assembly. Thus, it is no longer the sole prerogative of the Federal Government or even the Leader of the House and the opposition to make the appointment for one of the most important offices in a democracy. The CEC must be chosen through a process of broad-based consultation in the Parliament. Further, power and authority has been vested in the Election Commission, rather than the CEC. The Election Commission comprises of five Commissioners, CEC being only one of them. The other four must be a judge of the High Court from each province. It is now for the Commission, instead of the CEC, to make rules for the appointment of officers and staff in the employment of the Commission. Appointment of Judges The most contentious part of the 18th Amendment was the one which dealt with the appointment of judges to the Supreme Court and High Courts. This was mainly because the superior judiciary had assumed this function to the exclusion of all other institutions through a series of judgements, over the past two decades. A new Article (175A) was inserted in the Constitution, which created a Judicial Commission of Pakistan for the appointment of judges to the Supreme Court, High Courts and the Federal Shariat Court. The Commission was to comprise of the Chief Justice of Pakistan and six other members two senior most judges of the Supreme Court, a former Chief Justice or a former Judge of the Supreme Court nominated by the Chief Justice in consultation with the two member judges, the Federal Minister for Law and Justice, the Attorney General of Pakistan and a senior advocate nominated by the Pakistan Bar Council. For the appointment of judges of a High Court, the Commission was to have the following additional members: the Chief Justice of the -8-

10-007-2013-2 concerned High Court, the senior most judge of the High Court, provincial Law Minister and a senior advocate nominated by the concerned provincial Bar Council. Similarly, the Chief Justice of the Federal Shariat Court and the senior most judge of the Shariat Court were also made members of the Commission for appointments in the Shariat Court. Thus the Commission had broad-based representation from the Government, the judiciary and the legal fraternity. Under this Article, the President was required to appoint the most senior judge of the Supreme Court as the Chief Justice of Pakistan. For all other vacancies in superior judiciary, the Commission was to nominate one person for each vacancy to an 8member Parliamentary Committee (the Leader of the House and the Leader of Opposition to nominate two members each from each House of the Parliament). The Parliamentary Committee could either confirm the Commissions nomination against a vacancy within 14 days through a simple majority or reject the nomination with a three-fourth majority of its total members. For the broad-based Parliamentary Committee that drafted the 18th Amendment and the Parliamentarians who unanimously passed the Amendment, this comprised of a transparent and objective process for the appointment of judges. The principle of seniority was accepted in the appointment of the Chief Justice and for all other appointments. The nomination was to originate from the Judicial Commission and finalised by the Parliamentary Committee having representation from, the treasury and the opposition in both houses. While parliamentary oversight was ensured, the requirement of three-fourth majority meant that the Committee could not casually reject a nomination from the Commission. However, not everyone was happy. Shortly after the 18th Amendment was passed, a petition was filed in the Supreme Court of Pakistan challenging these portions of the Amendment on the ground that this amounted to undermining judicial autonomy and altering the basic structure of the Constitution (Hamid 2010). The Supreme Court passed an order in October 2010 highlighting the objections to the Amendment and referring the matter back to the Parliament. Consequently, another Amendment the 19th Amendment was brought in to settle the issue of the appointment of the judges, once and for all. The 19th Amendment amended Articles 81, 175A, 182, 213 and 246 of the Constitution. Of greatest significance was the amendment of Article 175A. Membership of the Judicial Commission was enhanced to include four most senior judges of the Supreme Court instead of two previously. More importantly, the -9-

10-007-2013-2 Parliamentary Committee was now required to hold its sessions on camera, record its reasons for rejecting a nomination (with three-fourth majority of total membership) and pass on these reasons to the Judicial Commission through the Prime Minister. In effect, this meant that although the Parliamentary Committee could still object to a nomination from the Commission, it was the Commission who got to finally decide whether such objections were valid or not. In addition to specifying a new process for the appointment of judges, the 18th Amendment had three other features that were important for the judicial system in Pakistan. First, the Islamabad High Court was created through inserting a new clause in Article 175.Benches of the Peshawar High Court and the Balochistan High Court were established at Mingora and Turbat respectively, through an amendment of Article 198. Second, judges were protected against involuntary transfers from one High Court to another. Previously, a High Court judge could be transferred to another High Court without his consent and without the consent of the involved Chief Justices of the Supreme Court and High Courts, if the period of transfer was less than two years. A judge refusing such a transfer was deemed as retired from service. These provisions were removed, meaning that a judge could only be transferred with his consent and with the consent of the relevant Chief Justices. Third, certain protection has been extended to the judges of the Federal Shariat Court who cannot be removed from office except in the manner and on grounds as specified for a Supreme Court judge. Miscellaneous In addition to the above changes and the assigning of greater responsibility to the provinces (discussed in the next Section), the 18th Amendment brought several important changes in the Constitution of Pakistan. These are discussed below. The North Western Frontier Province was renamed as Khyber Pakhtunkhwa (KPK). This was a long standing demand of the people of the province. At the same time, it triggered a demand for the creation of a new province in KPK. Moreover, the spellings of Baluchistan and Sind were changed to Balochistan and Sindh respectively. The requirement for political parties to hold intra-party elections under Article 17 was done away with. They are still required to hold these elections, but under an Act of the Parliament (Political Parties Act of 1962), rather than under the Constitution. The ban on a person -10-

10-007-2013-2 becoming the Prime Minister for a third term has also been removed. A new process has been prescribed for the appointment of a caretaker Prime Minister and his cabinet. The caretaker Prime Minister is to be appointed by the President in consultation with the outgoing Prime Minister and the Leader of the Opposition in the National Assembly. In case of a disagreement between the two, the matter is referred to the CEC, who will then pick from amongst the names proposed by the leaders of the past treasury and opposition. Three new fundamental rights were created. Article 10A made fair trial and due process a fundamental right of every citizen of Pakistan. This was done to ward off arbitrary trials and victimisation of political opponents by military and civil governments. Article 19A made access to information another fundamental right. Even on matters of national security (that can be kept secret for a certain period of time), citizens should have the right to get access to full information after a lapse, so that, an objective assessment of issues and decision can be made. In pursuance of this Article, provincial governments are now legislating their own Freedom of Information Acts. 7 An important addition to fundamental rights is the right to education (Article 25A). Although, providing education, especially to marginalised and the poor, has been a priority for the federal and provincial governments, it was not an enforceable right per se. Article 25A renders it states responsibility to provide free and compulsory education to all children in the 5-16 years age group. This fundamental right is being taken further, through provincial legislations. For example, the Sindh Assembly recently passed the Right of Children to Free and Compulsory Education Bill 2013. Similar draft legislation is being prepared by the Punjab Government. The definition of treason under Article 6 has been expanded to include, suspension and holding in abeyance, the Constitution.8 Further, conspiring, abetting and collaborating to abrogate, subvert, suspend or hold in abeyance the Constitution was also made an offence of equal measure under the said Article. A new clause (2A) was inserted to prohibit the Supreme Court and High Courts to validate any such treasonous act. Whether or not any such
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Three provincial governments, viz. Punjab, Sindh and KPK are in the process of legislating Freedom of Information within their respective jurisdictions. Punjab has a draft approved by the Cabinet to be presented in the Assembly shortly. KPK and Sindh are developing their own Bills. How well will these be implemented is an open question. Provinces face severe challenges due to culture of secrecy, poor record keeping and general incapacity. 8 Thus Musharrafs November 2007 action also attracted application of this Article.

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10-007-2013-2 act is tried as treason is for time to tell, but at least the Constitution is now clear on the matter. The Sixth and Seventh Schedules to the Constitution have been abolished. The Sixth Schedule contained a list of 35 laws, which could not be amended without prior approval of the President. The list included laws on expressly provincial subjects, such as the local government. This imposed a serious constrain on the provinces, who could not legislate freely even in explicitly provincial matters. The Seventh Schedule contained a list of eight laws, which could only be amended through the process prescribed for passing of a Constitutional Amendment. After the abolition of the two Schedules, laws listed therein are to be treated as any other law on the statute book. DECENTRALISING RESPONSIBILITY AND AUTHORITY A large portion of the 18th Amendment dealt with federal-provincial relations and sought to strengthen the position of the provinces within the federation of Pakistan. In addition to transferring several functions to the provinces, the Amendment clarified/amended numerous procedures in a manner so as to grant provinces a greater say in the running of the affairs of the federation. A brief discussion of these provisions follows. Changes to the Federal Legislative List Perhaps the most notable changes were the ones made in the Fourth Schedule, which had two legislative lists, viz. the Federal Legislative List and the Concurrent Legislative List. The Federal List had two parts. Part I contained 59 items and Part II had eight items. Subjects in Part I are the exclusive responsibility of the Federal Government, whereas subjects in Part II are to be deliberated and decided upon jointly by the federation and provinces through the Council of Common Interest (CCI). The 18th Amendment made the following changes to the Federal List: Four items were transferred from Part I to Part II of the List. These included: major ports; census; extension of the powers and jurisdiction of members of a provincial police force to other provinces; and national planning and economic coordination.

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10-007-2013-2 Four new items were added to Part II. These were: all regulatory authorities established under a federal law; supervision and management of public debt; standards in institutions of higher education as well as research, scientific and technical institutions; and inter-provincial coordination. The following two items were shifted from the Concurrent List to Part II of the Federal List: electricity; legal, medical and other professions. One item (Boilers) was shifted from the Concurrent List to the Federal List Part I. The following five items were deleted from the Federal List Part I: state lotteries; duties regarding succession of properties; estate duty in respect to property; capital gains; and general sales tax on services. Thus, the modified Federal List is as follows: Part I - 51 items; and Part II - 18 items. It should be noted that the expansion of Part II of the List has not come at the cost of the Provincial List, but is a direct result of the shrinking of Part I and abolition of the Concurrent List. Since Part II of the Federal List falls under shared responsibility of the federation and the provinces, a transfer of subjects to this Part signifies an enhanced role for the provinces even in matters that continue to be legitimately federal. The amended Federal List Part I contains subjects that have a supra-provincial character. Examples are: defence; military, naval and air force works; local self-government in cantonment areas; external affairs, implementation of treaties and agreements; nationality, citizenship and naturalisation; migration to and from Pakistan; posts and telegraphs; currency; foreign exchange; nuclear energy; quarantine; copyrights; national highways; federal surveys; the State Bank of Pakistan; federal institutions such as the Federal Ombudsman and the Federal Public Services Commission; various institutions in the federal territory; and federal taxation. With the possible exception of the federal institutions listed above, institutions working within the federal territory and federal taxation, all other subjects in Part I of the Federal List ultimately concern the provinces. It is possible to make a case for the transfer of any number of these subjects to Part II of the List, which would enable a greater provincial say in such

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10-007-2013-2 subjects. To start with, local self-government in cantonment areas and posts and telegraph appear to be good candidates for such further decentralisation of responsibility. The amended Federal List Part II also contains subjects of importance. These are: railways; mineral oil and natural gas; development of industries; federal corporations, industries and projects; CCI; major ports; census; economic coordination; all regulatory authorities established under a federal law; electricity; legal, medical and other professions; and interprovincial coordination. Abolition of the Concurrent Legislative List Another List in the Fourth Schedule was the Concurrent List, containing 47 subjects on which the Federal Government as well as the provincial governments, could legislate. Political parties, especially nationalist parties from smaller provinces had consistently demanded an abolition of this List and transfer of all subjects included therein to the provinces. It was also widely believed that there was a verbal agreement amongst, the framers of the Constitution in 1973, that the List would be abolished after ten years. However, there was no written record of any such formal or informal agreement to this effect (Rabbani 2011). The 18th Amendment abolished the Concurrent List. As noted above, two subjects were transferred to Part II of the Federal List and one subject was transferred to Part I of the List. The remaining 44 subjects were automatically devolved to the provinces as residual subjects. The subjects that came to an exclusive provincial realm include the following: criminal law; criminal procedure; civil procedure; evidence and oath; marriage and divorce; adoption; bankruptcy; arbitration; contracts; transfer of property; preventive detention; arms and firearms; explosives; opium; drugs and medicines; poisons and dangerous drugs; mental illness; environmental illness and pollution; population planning and social welfare; labour welfare; trade unions; shipping and navigation on inland waterways; newspaper, books and printing presses; evacuee property; Islamic education; zakat; tourism; and auqaf. This shows the extended sphere of provincial responsibility and authority. For provinces, it meant two things. First, they were now required to legislate on these subjects, even if this amounted to adopting, mutatis mutandis, the federal legislation. Hitherto, provinces had mainly relied on the Federal Government for legislation, policy and regulation. But these -14-

10-007-2013-2 subjects were no longer legitimate federal business; hence, the provinces had to frame their own laws, rules and policies in these matters. Until this was done, Article 270AA (added through the Amendment) provided for continuation of existing laws, regulations and notifications to avoid a legal vacuum in the aftermath of the abolition of the Concurrent List. Second, provinces had to develop the capacity to effectively discharge these newly acquired responsibilities. Federal legislation had in most cases also created federal institutional infrastructure, which now had to be either continued in the federation under another guise or had to be established in the provinces. We will see several examples of both in the next section. Strengthening Provinces vis a vis the Federation The provincial role in governance was enhanced in several ways. For example, Article 157 was amended to require the Federal Government to consult the concerned Provincial Government before taking a decision for constructing hydro-electric power stations in the province. Further, any dispute in this matter could now be referred to CCI for resolution. Similarly, a provision was added to Article 147 so that if a Provincial Government entrusted to the Federal Government any of its functions, it had to seek ratification for such an act from the Provincial Assembly within sixty days. In the same spirit, CCI was strengthened by amending Articles 153 and 154, which dealt with the composition and functions of the Council. Previously, the Council comprised of four members from the Federal Government and the provincial Chief Ministers. It was chaired by the Prime Minister, if he was a member, or by another Federal Minister who was a member of the Council. The Amendment made the Prime Minister both a member and the Chairman. Further, it was made compulsory for the Federal Government to constitute the Council within thirty days of the Prime Minister taking the oath of office. The composition of the National Economic Council was specified as comprising of the Prime Minister, four members nominated by the Prime Minister, provincial Chief Ministers and four members nominated by the Chief Ministers (one by each Chief Minister). The Prime Minister was to act as the Chairman of the Council, and was entrusted with the responsibility of reviewing the overall economic condition of the country and advise the Federal and Provincial Governments on financial, economic and social policies.

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10-007-2013-2 An important contribution of the 18th Amendment was to strengthen the Senate and assign it greater role in various matters. Since the Senate represents provincial assemblies in the federal Parliament, its strengthening automatically translated into greater provincial say. For example, under Article 91(4), the Cabinet was collectively responsible to the National Assembly. An amendment in this Article made the Cabinet responsible to the National Assembly as well as the Senate. Similarly, the President could previously issue an Ordinance even when the Senate was in session. An amendment in Article 89 expressly prohibited the issuance of an ordinance when either House of the Parliament was in session. Since legislation could be initiated in either House, it was only logical to propose a piece of legislation at once in the House that was in session, rather than adopting the ordinance route. Further, the Senate was given equal representation in the Parliamentary Committee, which was responsible for finalising the Judicial Commissions recommendations for the appointment of judges. Both the treasury and the opposition were required to nominate two members from each House. In several cases, even when recourse to the Senate was warranted under the 1973 Constitution, the matter was placed before a joint sitting of the Parliament. This effectively meant a dissenting view from the Senate was subsumed under the numerical majority of the National Assembly. The 18th Amendment brought several changes which required such matters to be placed before both Houses of the Parliament, separately. For example, the Presidential proclamation of emergency was to be placed before each House for approval within ten days of the proclamation. So was any order suspending a fundamental right during an emergency under Article 233. Similarly, the National Economic Council was made responsible to both Houses of the Parliament through insertion of a new clause to Article 156. Further, Articles 29, 153 and 171 were amended so that several important reports (e.g. Report on the Principles of Policy; Report of CCI; and Report of the Auditor General of Pakistan) were presented to both Houses, instead of just the National Assembly. Enhanced Share in National Resources Another important contribution of the 18th Amendment was to recognise provinces as rightful beneficiaries of their natural resources, but in collaboration with the Federal Government. An amendment in Article 172 limited the ownership of the Federal Government to lands, minerals and other things of value within the continental shelf or lying under the ocean, beyond the territorial waters of Pakistan. Thus, lands, minerals, etc. that lay within Pakistani -16-

10-007-2013-2 territorial waters were left for provinces to explore, develop and exploit. Further, all new discoveries of minerals, oil and natural gas within a province or in territorial waters adjacent to a province were to be owned, jointly and equally, by the Federal and the Provincial Government. An important institution created by the 1973 Constitution was the National Finance Commission (NFC). It had provincial representation and was responsible for resource distribution between the Federal Government and the Provincial Governments. The 18th Amendment strengthened provincial position vis a vis the NFC by declaring that the share of a province in an NFC award will not be less than its share in the previous award (Article 160(3A)). It also required the NFC to present its report to both the Houses of the Parliament and to the provincial assemblies. A new clause was added to Article 161 so that the net proceeds of the federal excise duty on oil levied at well-head(Collected by the Federal Government) went entirely to the provinces in which the well-head was located, rather than forming a part of the Federal Consolidated Fund. Previously, only the net proceeds of the excise duty on natural gas went to the concerned province. Sales tax on services also became a provincial tax after its deletion from the Federal List. Subject to the oversight of the National Economic Council (in which provinces were represented), provinces were allowed to raise loans and provide guarantees under Article 167. This fulfilled a long-standing provincial demand to raise loans from domestic or international lenders against the security of the Provincial Consolidated Fund. THE IMPLEMENTATION CHALLENGE From the above discussion it is evident that, the 18th Amendment created the necessary constitutional framework for administrative and fiscal devolution of responsibility, from the federation to the provinces. The next challenge was its implementation, which was problematic for two reasons. First, the federal (elected and unelected) administrative system was quite averse to letting go of responsibility, as it ultimately meant loss of control over human, physical and fiscal resources. It was quick to invent innovative interpretations of various constitutional provisions as well as develop seemingly convincing justifications for keeping at least the more important functions with the Federal Government. Several -17-

10-007-2013-2 Ministries, instead of initiating an enabling legislation, referred their dissolution proposals back to the Implementation Commission for review (Jamy et al. 2012). Second, there were apprehensions about the capacity of provincial governments. They neither had the legal and institutional infrastructure nor the human resource to effectively perform various functions, if these were devolved. Even Provincial Governments (especially Balochistan) appreciated this and were in some cases happy to let the Federal Government continue performing functions as before. Nevertheless, the momentum created by the 18th Amendment was hard to resist. Ultimately, 18 federal Ministries were dissolved on, 1st July 2011, to give effect to various provisions of the Amendment. Functions performed by the dissolved Ministries were assigned to different federal Ministries (particularly to the four new Ministries created in October 2011), deleted or transferred to the Provincial Governments. The Rules of Business were amended accordingly. The current position is summarised below: Functions performed by dissolved Ministries Functions assigned to other Ministries Functions devolved to provinces 301 207 94

The data shows that less than 1/3rd functions were actually devolved, which is not very encouraging. In the following sub-sections, changes brought in pursuance of the 18th Amendment are examined with respect to the Agriculture, Education and Health sectors. Agriculture In the 1973 Constitution, Agriculture was part of neither the Federal Legislative List nor the Concurrent Legislative List, i.e. it was a residual subject and ipso facto the exclusive responsibility of the provinces. And yet, there was a large Ministry of Food and Agriculture in the Government of Pakistan, which immediately before its dissolution, was performing 39 different functions and had 12 attached departments/organisations. It had 7,020 employees, a development budget of Rs 10.9 billion and was implementing 59 projects worth Rs 65.4 billion (Bakhshi et al. 2012). The Ministry strongly opposed its dissolution on the ground that agriculture was central to Pakistans economy and was a significant contributor to exports. -18-

10-007-2013-2 When it became clear that dissolution was inevitable, the Ministry proposed its reembodiment as the Ministry of Food Security and Research (Jamy et al. 2012). Accordingly, a new Ministry of National Food Security and Research was created in October 2011. Appendix B lists the now-dissolved Ministrys functions and departments and indicates their current status. 9 Summary statistics are as follows: Functions: Deleted Transferred to other Ministries Devolved to provinces Attached departments/organisations: Wound up Transferred to other Ministries Devolved to provinces 04 07 01 02 26 11

An examination of the functions and departments that were disposed of the Ministry of Food and Agriculture, upon its dissolution in 2011, is illustrative in two ways. First, Agriculture was a residual subject; there was no justification in the first place for the existence of the Ministry of Food and Agriculture with such a large portfolio. This was clearly a historical wrong and the 18th Amendment provided an opportunity for correcting it. However, the opportunity was missed and only two functions were deleted and only 11 were devolved to the provinces. The rest were retained. It is difficult to understand why there was a need to keep agricultural storage, seed testing and certification, agricultural research, grading, etc. in the federal purview. It is also noteworthy that these functions were already being performed by the provincial governments, in parallel, with the Federal Government. For example, the
9

Cabinet Divisions Notification No. 4-14/2011-min-I; dated 26th October 2011

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10-007-2013-2 Punjab Government had an elaborate agricultural research network under the Ayub Agricultural Research Institute with a mandate similar to the one pursued by the Pakistan Agricultural Research Council (retained by the Federal Government). Second, only four attached departments/organisations were wound up (another one is in the process) and only one was devolved to the provinces. The only one to be devolved the Soil Survey of Pakistan was devolved to Punjab, since its offices were located in Lahore, which meant that effectively none were devolved to the smaller provinces. The case of seed testing and certification exemplifies the unwillingness of the federal administrative system to devolve its functions and resources. This function is performed under the Seed Act of 1976, which is a federal statute, passed after provincial assemblies ceded their authority to the Federal Government under Article 144 of the Constitution (Hussain 2004; Hussain and Hussain 2007). This was necessary, since the Federal Government could not legislate on seeds on its own, since Agriculture was a residual subject. Under the Seed Act of 1976, the Federal Seed Certification and Registration Department (FSC&RD) was established to register new plant varieties and to regulate the seed business in Pakistan. FSC&RD was based in Islamabad and had its field offices in the provinces, which inter alia provided seed certification services to seed producers. Over the years, several new developments in the seed provision system, especially the emergence of the private seed sector as a major seed provider, necessitated amendments in the Seed Act, 1976. But these could be made only after obtaining fresh authorisation from at least two provinces in terms of Article 144 of the Constitution. Although provincial governments, particularly the Punjab Government, appreciated the urgency to amend the Seed Act of 1976, none provided the required authorisation despite some follow up from the then Ministry of Food and Agriculture. In the wake of the 18th Amendment, it was only natural for the provincial governments to expect that at least a function as mundane as seed testing and certification would be devolved. Unfortunately, this did not happen and the Federal Government initially assigned it to the Ministry of Science and Technology and subsequently to the newly created Ministry of National Food Security and Research. FSC&RD was also transferred to the new Ministry. But not all provinces were ready to accept this easily. The momentum created by the 18th Amendment emboldened the Punjab Government to consider repealing the Seed Act of 1976 to the extent of Punjab and legislate for a new Punjab Seed Act instead. Accordingly, a draft -20-

10-007-2013-2 Punjab Seed Act was prepared in 2011 and shared with stakeholders, including the FSC&RD. The latter opposed it vehemently and instead asked the Punjab Government to expedite ceding of legislative authority under Article 144 to bring the required amendments in the Seed Act of 1976. So far the Punjab Government has not provided such authorisation to the Federal Government, but it has not pursued its own legislation either. The retention of the Pakistan Central Cotton Committee (PCCC) by the Federal Government presents a similar example. PCCC is responsible for conducting research on various aspects of cotton production and manages a set of research stations in Punjab and Sindh. Since both provinces had their own cotton research programs in fact, Punjab Governments equally large Cotton Research Station was situated right across the road from PCCCs Cotton Research Institute in Multan they expected PCCC to be devolved and its research outfits to be shared between the two provinces. Instead, the Federal Government chose to retain PCCC, which was assigned to the Ministry of Textiles upon dissolution of the Ministry of Food and Agriculture. Education The 18th Amendment brought several important changes to the Constitution that had a direct bearing on education provision in Pakistan. Perhaps the most significant was the insertion of Article 25A, which created education as a fundamental right and required the state to provide free and compulsory education to all children between the ages of five to sixteen years. Implementation of this fundamental right requires that the Federal and Provincial Governments establish the necessary legislative and institutional framework for their respective areas of jurisdiction. As mentioned above, the Sindh Government has enacted a new law to this effect and a similar draft Bill is under consideration of the Punjab Government. Further, the abolition of the Concurrent List brought the following two subjects in the exclusive provincial realm: Curriculum, syllabus, planning, policy, centres of excellence and standards of education

Islamic education -21-

10-007-2013-2 Previously, setting of national curriculum and syllabus was the responsibility of the Curriculum Wing of the (now dissolved) Ministry of Education. The wing was established under the Federal Supervision of Curricula, Textbooks and Maintenance of Standards of Education Act of 1976. To support the federal Curriculum Wing, each province had also established Curriculum Bureaus. Now the Wing has been dissolved and the responsibility of setting up Curriculum has completely fallen upon the provinces. For the time being, none of the provinces have deviated from the Curriculum, which was last revised in 2007-08. But, it is only a matter of time that provincial Curriculum Bureaus will start modifying them to suit their own educational needs. The following three additions to the Federal List Part II are also important for education provision: All regulatory authorities established under a federal law Standards in institutions of higher education and research Scientific and technical institutions

The aftermath of the passing of the 18th Amendment saw considerable confusion and struggle over the ultimate fate of the Higher Education Commission of Pakistan. Since education including higher education is a provincial subject, provinces demanded devolution of the Commission to the provinces. But the Federal Government opted to retain it (at least until the expiry of the current NFC Award), as it was responsible for setting the standards for higher education including equivalence and accreditation. The table below, historically places, the recent changes to the Federal and the Concurrent Lists with respect to education.

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10-007-2013-2 Table 1 Status of Education Policy, Planning and Curriculum in Various Constitutions Subject Government 1935 Right education Education policy planning Curriculum to Recognised but justiciable Provincial List Provincial Legislative List Standards in Provincial higher education Legislative List and Legislative Recognised justiciable Provincial Legislative List Provincial Legislative List Provincial Legislative List Recognised justiciable Provincial Legislative List Provincial Legislative List Provincial Legislative List 1956 1962 Constitution 1973 Constitution Before Amendment Recognised justiciable Concurrent Legislative List Concurrent Legislative List Concurrent Legislative List Federal List Part II Provincial subject Provincial subject After 18
th

of India Act, Constitution

the

Amendment Justiciable not but not but not but not right

Source: Report of Syndicate 4 (9th SMC), National Management College cited in Jamy et al. 2012 The dissolution of the Ministry of Education in 2011 was soon followed by the creation of the Ministry of Education and Training. The new Ministry was responsible for, inter alia, establishing and managing educational institutions within federal territories, international conventions and agreements regarding, education, achievement of the Millennium Development Goals (MDG), and technical and vocational training. At the time of its dissolution, the Ministry of Education administered 17 subordinate organisations, two attached departments, six autonomous organisations and 14 chairs in foreign universities. An examination of the functions and departments assigned to various Ministries and devolved to provinces is interesting. It shows that the new Ministry is almost as large as its predecessor, as only four departments/organisations have been devolved. The -23-

10-007-2013-2 following organisations/departments of the dissolved Ministry are now attached with the newly established Ministry of Education and Training. Health Like Agriculture, Health was also a residual subject and, therefore, fell under the provincial purview. However, the following items (entries 20-23) in the Concurrent Legislative List enabled the Federal Government to extend its role in this area. Drugs and medicines Poisonous and dangerous drugs Higher Education Commission National Vocational and Technical Training Commission National Training Bureau National Talent Pool National Commission for Human Development Academy of Educational Planning and Management Akhtar Hameed Khan, National Centre for Rural Development Federal Board of Intermediate and Secondary Education National Education Assessment System National Internship Programme

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10-007-2013-2 Prevention of extension of contagious and infectious diseases from one province to another Mental illness and mental retardation

Over the years, the Ministry of Health launched several vertical programs, which further extended Federal Governments outreach in primary and tertiary healthcare. Abolition of the Concurrent List brought the above-mentioned subjects under the exclusive purview of provincial governments. Further, the inclusion in the Federal List Part II of regulatory authorities, established under a federal law the planning and coordination of scientific and technical research, and legal, medical and other professions enhanced provincial responsibility. This was because these subjects were now under shared responsibility of the federation and provinces. At the time of its dissolution, the Ministry of Health was responsible for performing 15 functions and administered 22 attached departments/organisations. Appendix C provides the post-Amendment status of these functions and departments/organisations after the Ministrys dissolution in 2011. A summary is presented below. The Federal Government also transferred vertical program and provided Rs 15 billion to the provinces for managing these programs (Jamy et al. 2012). Functions: Assigned to other Ministries 12 Devolved to provinces Departments/organisations: Wound up or merged 03 03

Assigned to other Ministries 15 Devolved to provinces 04

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10-007-2013-2 From the above data, it is evident that only 1/5th functions and about 1/3rd federal departments were actually devolved to the provinces (or wound up). It is noteworthy that the dissolved Ministry of Health did not reappear as another Ministry like the Ministries of Agriculture and Education. Its functions and departments were, therefore, spread more widely. Considering the national importance of health, Pakistans international commitments and the existence of several health-related entries in the Federal List Part II, the need to establish an institutional hub in the Federal Government for all health-related functions has been suggested by several commentators (e.g. Nishtar 2011). Conclusion From the above discussion it is clear that the 18th Amendment was a milestone in the constitutional history of Pakistan. It not only restored the parliamentary character of the Constitution by returning to the Prime Minister his Cabinet functions and powers that had been usurped by military Presidents (over the past four decades), but also made important contributions in enhancing fundamental rights, strengthening institutions and specifying procedure for the appointment of judges. Although, appointment of the judges became controversial immediately after the Amendment was passed and the procedure had to be partially modified in line with directions from the Supreme Court, it was a milestone in settling (at least for the time being) the contentious issue of appointments in superior judiciary. Its most important contribution, however, was to strengthen the provinces in the federation by abolishing the Concurrent Legislative List, enlarging the Federal List Part II, strengthening the CCI, reducing the powers of provincial Governors and enhancing powers of the Senate. Devolution of functions to the provinces and giving them greater role in running federal affairs was indeed a major step in correcting the historical imbalance in federal-provincial relations. It is remarkable that the Parliamentary Panel constituted to draft the Amendment was able to develop a political consensus on such a wide range of constitutional issues and get it through the Parliament unanimously. Implementation, however, proved problematic. Federal Ministries identified for dissolution went back to the Implementation Committee and made a case for their re-embodiment under a different title or at least the assignment of most of their functions to other Ministries in the Federal Government. These efforts were largely successful and eventually less than 1/3rd functions and departments of dissolved Ministries were actually devolved to the provinces (Section 5). An examination of the reassigned functions of the dissolved Ministries showed -26-

10-007-2013-2 that at least some of these could be conveniently devolved to the provincial governments. They had the required capacity and were already performing these functions. The devolution of such functions and departments/organisations, which are clearly a provincial responsibility in the amended Constitution, constitutes the unfinished agenda of the constitutional reform process.

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10-007-2013-2 Appendix A (p1 of 4) CONTEXTUALISING ADMINISTRATIVE AND FISCAL DECENTRALISATION: THE 18TH CONSTITUTIONAL AMENDMENT Summary of Major Changes Brought About by the 18th Amendment Changes to the Constitution brought about by the 18th Amendment can be grouped in the following five categories: 1) restoration of parliamentary form of government; 2) strengthening key institutions; 3) appointment of judges; 4) federation-provinces relations; and 5) miscellaneous. A summary of changes in each group is presented below. 1) Restoration of the Parliamentary Form of Government The presidents powers were substantially reduced. All Musharraf-specific provisions were deleted. The presidents powers to dissolve Assemblies or to refer a question to a Referendum were abolished. The president was to appoint Governors and other key personnel on the binding advice of the Prime Minister. Similar to the reduction in the powers of the President, powers of provincial Governors were also curtailed. Executive authority in the Federation was to be vested in the Prime Minister, rather than the President. Rules of Business were also to be framed by the Federal Government. Sixth and Seventh Schedules were deleted. Sixth Schedule listed laws that could be amended only after prior approval by the President and Seventh Schedule listed laws whose amendment required the same procedure as was required for amending the Constitution.

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10-007-2013-2 Appendix A (p2 of 4) CONTEXTUALISING ADMINISTRATIVE AND FISCAL DECENTRALISATION: THE 18TH CONSTITUTIONAL AMENDMENT 2) Strengthening Key Institutions Role of the Senate was substantially enhanced. An Ordinance can no longer be promulgated while the Senate is in session. The number of working days and members were increased. The Prime Minister and the Cabinet were collectively made responsible to the National Assembly as well as the Senate. The Auditor General of Pakistan was given a constitutional term of four years. The Election Commission was significantly strengthened. Term of the Chief Election Commissioner was increased from three to five years and procedure for his/her appointment was altered. The Council of Common Interests (CCI) was strengthened by making the Prime Minister its chairperson and by establishing a permanent secretariat. 3) Appointment of Judges The procedure for the appointment of judges to superior judiciary was radically changed. A Judicial Commission was constituted to nominate judges. Nominations were approved/rejected by a Parliamentary Committee. New benches of the high courts were set up. Judges can longer be transferred from one High Court to another, even for short periods, without their specific consent.

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10-007-2013-2 Appendix A (p3 of 4) CONTEXTUALISING ADMINISTRATIVE AND FISCAL DECENTRALISATION: THE 18TH CONSTITUTIONAL AMENDMENT 4) Federation-Provinces Relations Emergency in a province was to be imposed only with the consent of the concerned provincial assembly. The Concurrent Legislative List was abolished. Thus all items included therein, except the ones shifted to the Federal List, were transferred to the provinces. Several items were shifted from the Federal List Part I and the Concurrent List to Federal List Part II, thereby making these items subject to shared federalprovincial responsibility in the Council of Common Interests. Share in net proceeds of royalty on crude oil and net proceeds of development surcharge on natural gas was to be given to the provinces. Sales tax on services was devolved to the provinces.

5) Miscellaneous NWFP was renamed as KPK. The definition of high treason was expanded to include an act of suspending the Constitution or holding it in abeyance. Three new fundamental rights were created. These were: 1) right to fair trial; 2) right to information; and 3) right to education.

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10-007-2013-2 Appendix A (p4 of 4) CONTEXTUALISING ADMINISTRATIVE AND FISCAL DECENTRALISATION: THE 18TH CONSTITUTIONAL AMENDMENT

Article 17 was amended to do away with intra-party elections on the grounds that these were already provided in the Political Parties Act of 1962.

Life time bar on holding political office in case of conviction by a court was removed and limit of 5 years from the date of release from jail was reintroduced.

The restriction that a person could not hold the office of the Prime Minister or the Chief Minister for more than two terms was removed.

Size of the cabinet was specified as 11% of the total membership or 49, whichever was higher. Similar restrictions were imposed for provincial cabinets.

Provisions were made and procedure was specified for appointment of a caretaker government upon the expiry of the term of a government.

Source: Authors Own Work

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10-007-2013-2 Appendix B (p1 of 5) CONTEXTUALISING ADMINISTRATIVE AND FISCAL DECENTRALISATION: THE 18TH CONSTITUTIONAL AMENDMENT Status of Functions and Departments of Erstwhile Ministry of Food and Agriculture Functions Deleted/ assigned/ devolved Deleted Deleted Ministry of National Food Security and Research Planning and Development Division Ministry of Commerce Ministry of National Food Security and Research Ministry of Commerce

No. 1 2 3 4 Sugar Board

Function

Socio-economic studies for framing agricultural research policies Economic Coordination and planning in respect of food Economic Planning and policy-making in respect of agriculture Procurement of food grains, including import of sugar for federal requirement; inter-provincial supplies; and for export and storage at ports

Import and export control on food grains and foodstuffs Inspection, grading analysis of food grains and foodstuffs

and maintenance of standards of quality for import and export Plant protection:- (a) standardisation and import of pesticides; (b) aerial spray; (c) plant quarantine; and (d) locust control in its international aspect and maintenance of locust warning organisations Grading of agricultural commodities other than food grains, for exports Standardisation and import of fertilizers for meeting Provincial requirements Administrative control of the Pakistan Agricultural Storage and Services Corporation (PASSCO) -32-

Ministry of National Food Security and Research

9 10 11

Ministry of Commerce Ministry of National Food Security and Research Ministry of National Food Security and Research

10-007-2013-2 Appendix B (p2 of 5) CONTEXTUALISING ADMINISTRATIVE AND FISCAL DECENTRALISATION: THE 18TH CONSTITUTIONAL AMENDMENT Keeping watch over the food supplies (including storage) position in the country Collection of statistics on agricultural research. Collection and compilation of agricultural statistics Collection of statistics regarding production, consumption, prices, imports and exports of food grains Preparation of basic plan for bulk allocation of food grains and food-stuffs Price stabilisation by fixing procurement and issue prices 17 including keeping a watch over the price of food grains and those required for inter-Provincial supplies 18 19 20 Food and Agriculture Organisation of the United Nations in respect of food Coordination of work relating to aid/assistance being received from aid-giving agencies in respect of food sector Food and Agriculture Organisation of the United Nations in respect of agriculture Coordination of work relating to aid/assistance being 21 received from aid-giving agencies in respect of agriculture sector Coordination of aid/assistance from international aid22 giving agencies and FAO in respect of agricultural research, including manpower training for research 23 Agricultural Research Council: Agricultural commodities research Ministry of National Food Security and Research Ministry of National Food Security and Research Ministry of National Food Security and Research Ministry of National Food Security and Research Ministry of National Food Security and Research Ministry of National Food Security and Research Ministry of National Food and foodstuffs imported from abroad or required for export Security and Research Ministry of National Food Security and Research Federal Bureau of Statistics Federal Bureau of Statistics Ministry of National Food Security and Research Ministry of National Food Security and Research

12 13 14 15 16

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10-007-2013-2 Appendix B (p3 of 5) CONTEXTUALISING ADMINISTRATIVE AND FISCAL DECENTRALISATION: THE 18TH CONSTITUTIONAL AMENDMENT Seed testing and seed certification Agricultural commodities research; Federal Agricultural Research Organisations. Research for the introduction of improved germ plasma both of plant and animal origin. Inter-provincial coordination and coordination between the 27 centre and the provinces in respect of agricultural research, including training of high level agriculture scientists. Administrative control of Pakistan Central Cotton 28 29 30 31 32 33 34 35 36 Committee with participation and inputs of Textile Industry Division Economic Studies for framing agriculture policy Farm management research for planning project formulation and evaluation Crops forecast and estimation; crop insurance Marketing intelligence Agricultural commodity research (marketing research and laboratory research for laying down national grades) Soil survey, comprehensive inventory of the soil resources of the country and their proper utilisation Introduction of special crops like jute, tea, olive etc. Standardisation of agricultural machinery Under-developed Areas including: identification of under37 developed areas; and the fields in which an area is underdeveloped; and measures necessary to remove the causes of under-development in different areas. Devolved Ministry of National Food Security and Research Ministry of National Food Security and Research Ministry of National Food Security and Research Ministry of National Food Security and Research Ministry of Textile Industry Devolved Devolved Devolved Devolved Devolved Devolved Devolved Devolved

24 25 26

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10-007-2013-2 Appendix B (p4 of 5) CONTEXTUALISING ADMINISTRATIVE AND FISCAL DECENTRALISATION: THE 18TH CONSTITUTIONAL AMENDMENT Economic planning and coordination with regard to cooperatives High level manpower training for agricultural research

38 39

Devolved Devolved

Departments: Wound up/ assigned/ devolved Wound up Wound up Wound up Wound up Assigned to the Cabinet Division for winding up Assigned to the Ministry of 6 Department of Plant Protection, Karachi National Food Security and Research Assigned to the Ministry of 7 PASSCO, Lahore National Food Security and Research Assigned to the Ministry of 8 Agricultural Policy Institute, Islamabad National Food Security and Research Assigned to the Ministry of 9 Federal Seed Certification & Registration, Islamabad National Food Security and Research

No 1 2 3 4 5

Department Agricultural & Livestock Products Marketing and Grading Department, Islamabad Directorate of Food Accounts, Islamabad Pakistan Oilseed Development Board, Islamabad Directorate General of Food, Karachi Pakistan Dairy Development Company (PDDC)

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10-007-2013-2 Appendix B (p5 of 5) CONTEXTUALISING ADMINISTRATIVE AND FISCAL DECENTRALISATION: THE 18TH CONSTITUTIONAL AMENDMENT Assigned to the Ministry of 10 Pakistan Agricultural Research Council National Food Security and Research 11 12 Pakistan Central Cotton Committee, Multan Soil Survey of Pakistan, Lahore Assigned to the Ministry of Textile Industry Devolved to the Government of Punjab

Source: Authors Own Work

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10-007-2013-2 Appendix C (p1 of 3) CONTEXTUALISING ADMINISTRATIVE AND FISCAL DECENTRALISATION: THE 18TH CONSTITUTIONAL AMENDMENT Status of Functions and Departments of Erstwhile Ministry of Health Functions Sr. No.
1

Functions
National Planning and Coordination in the field of Health Dealings and agreements with other countries and international

Deleted/ devolved/ assigned

Planning and Developmrnt Division Economic Affairs Division

organisations in the fields of health, drug and medical facilities abroad International aspects of medical facilities and public health:

International Health Regulations: Port health; health and medical facilities abroad Scholarships/fellowships, training courses in health from international Agencies such W.H.O. and UNICEF Medical, nursing, dental, pharmaceutical, paramedical and allied subjects Maintenance of educational standards education abroad and educational facilities for backward areas and for foreign nationals, except the nomination of candidates form Federally Administration Tribal Areas for admission to Medical College Standardisation and manufacture of biological and pharmaceutical products Vital Health Statistics Medical and health services for Federal Government employees National Associations in medical and allied field such as the Red Crescent Society and T.B. Association Red Crescent Society and T.B. Association. Red Crescent Society and T.B.

Devolved Economic Affairs Division Devolved, except to the extent of Federal Areas

4 5

IPC Division

7 8 9 10 11

Drug Regulatory Authority Federal Bureau of Statistics CADD IPC Division Red Crescent Society and TB Association

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10-007-2013-2 Appendix C (p2 of 3) CONTEXTUALISING ADMINISTRATIVE AND FISCAL DECENTRALISATION: THE 18TH CONSTITUTIONAL AMENDMENT
Legislation pertaining to drugs and medicines, including 12 narcotics and psychotropic, but excluding functions assigned to the Pakistan Narcotics Control; Administration of Drugs Act 1976, and Poisons and dangerous drugs 13 14 15 16 Prevention of the extension from one Province to another of infectious and contagious diseases. Lunacy and Mental deficiency Administrative control of the Pakistan Medical Research Council Administrative control of the National Institute of Handicapped Islamabad Devolved Devolved IPC Division CADD Drug Regulatory Authority

Departments:
Sr. No. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 After 18th Amendment assigned to IPC Division IPC Division IPC Division IPC Division IPC Division IPC Division Cabinet Division Cabinet Division CADD CADD To be wound up Merged with National Institute of Health IPC Division CADD Government of Sindh

Pre 18th Amendment Pakistan Medical and Dental Council Pakistan Nursing Council College of Physicians and Surgeons National Council for Tibb National Council for Homeopaths Pharmacy Council of Pakistan National Institute of Health Proposed Drug Regulatory Agency PIMS Federal Government Services Hospital Islamabad Directorate of Malaria Control. Islamabad National Health Information Resource Centre, Lahore Health Services Academy, Islamabad Federal Dental and Medical College, Islamabad Jinnah Postgraduate Medical Centre, Karachi

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10-007-2013-2

Appendix C (p3 of 3) CONTEXTUALISING ADMINISTRATIVE AND FISCAL DECENTRALISATION: THE 18TH CONSTITUTIONAL AMENDMENT
16 17 18 19 20 21 22 National Institute of Child Health, Karachi Directorate of Central Health Establishment, Karachi National Institute of Cardiovascular Diseases, Karachi Sheikh Khalifa Bin Zaid Hospital, Quetta Tobacco Control Cell Vertical Programmes National Health Emergency Preparedness and Response Network Government of Sindh IPC Division Government of Sindh Government of Balochistan N/A To Provinces Cabinet Division

CADD: Capital Admisnistration and Development Division IPC : Inter Provincial Coordination Division

Source: Authors Own Work

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10-007-2013-2 List of References: Bakhshi, Tariq Viqar, Ijaz Hussain, Asim Ahmad, Gul Baig and Aamir Zamir, Committee on Transfer of Federal Agriculture Offices and Organizations and Other Functions of MINFA to the Provinces of Khyber Pakhtunkhaw and Sindh, (Lahore: National School of Public Policy, 2012). Hamid, Shahid. ,Impact of the 18th Amendment on Federation-Provinces Relations, (Islamabad: Pakistan Institute of Legislative Development (PILDAT), 2010). Hussain, Akhlaq ,An Overview of Seed Industry, (Islamabad: FSC&RD, Government of Pakistan, 2004). Hussain, Akhlaq and Tassawar Hussain. Seed Industry of Pakistan (Islamabad: Federal Seed Certification and Registration Department, 2007) p.102. Jamy, Hassan Nasir, Jawad Paul, Ehsan Bajwa, Abdullah Sumbal, Shahid Zaman, Naveed Saleh Siddique, Mohsan Atta and Qamar Mustafa Shah, Strategic Appraisal of 18th Amendment: Federal/Provincial Roles and Impact on Service Delivery, (Lahore: National School of Public Policy 2012). Levinson, Sanford V, Responding to Imperfection: The Theory and Practice of Constitutional Amendment, (Princeton, NJ: Princeton University Press, 1995). Nishtar, Sania, Health and the 18th Amendment: Retaining national functions in devolution, (Islamabad: Heartfile, 1995). Rabbani, Mian Raza, A Biography of Pakistani Federalism: Unity in Diversity, (Islamabad: Leo Books, 2011). Rizvi, Syed Shabbar Raza, Constitutional Law of Pakistan: Text, Case Law and Analytical Commentary, (Lahore: Vanguard, 2002).

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