The constitution is referred to as a living document for a dynamic society. If it cannot grow and evolve with time, it would become brittle and irrelevant. This is why the constitution itself provides an unfettered right to parliament to amend IT – albeit with a two-thirds majority.
Pakistan inherited a vice-regal constitution and a federal government in which all the powers were with the governor general. It was in 1956 that Pakistan got its own constitution, a federal government and a balanced federation in which powers were distributed between the federal government and the provinces as they were found necessary at that time. However, it was repealed due to the unethical and unbecoming practices of parliamentarians.
The 1962 constitution gave a presidential system in which the federation’s power was vested in the president. It was repealed and later the 1973 constitution was framed following a political compromise between the political parties which had won the first fair and free elections of Pakistan in 1970.
Later a number of martial laws convoluted the constitution and added provisions to it, changing its character and giving more power to the federation. It could be called a ‘centralized federation’.
The 18th Amendment was a healing process by which a successful attempt was made to restore the constitution to its original form as far as possible. Additionally, it added some very useful and beneficial provisions which can be summed up under the phrase “to make the federation a participatory federation between the provinces and the centre.” Soon it was found that the 18th Amendment required some changes, particularly in the case of the judiciary which was followed by the 20th and 21st constitutional amendments.
A federal structure requires that the federal government should be able to perform all the obligations entrusted to it or anational policy to be duly executed while maintaining the autonomy of the provinces within their spheres. If a federation cannot discharge its national duty then it requires balancing by parliament.
There is talk of a review of the 18th Amendment due to the extraordinary situation that has arisen on account of the Covid-19 pandemic. This has led to protests by politicians and political parties under the misguided rhetoric that they will not allow a rollback of the 18th Amendment. The difference between rollback and review is obvious.
Rollback is repeal, which means obliterate. Review is to see if it needs any improvement. No one can ever think of a rollback of the 18th Amendment. But of course, a review is not a rollback. Review is not only permissible under the constitution but indeed desirable when one is confronted with a new problem.
However, the area for improvement is limited. Does the national policy require that the Concurrent List be restored with a limited number of subjects to include national curriculum in the education system, to control population growth, to provide a common standard for drugs and to meet the financial requirements of the federation which is facing belligerent aggression by its neighbour, and to meet the financial depression in our economy due to the Covid-19 pandemic?
I may add that the Concurrent List was omitted on a wrong impression that there was a promise to do away with it. The record does not support this assertion. The real cause was that in the past the federation did not understand the spirit and purpose of the Concurrent List, which was to guide the provinces where the federal government had passed a law which could affect the other provinces. The purpose of the Concurrent List was guidance and not dictation.
The nation and the parliamentarians should have learnt from their past experience that misuse of power and violation of the spirit of the Concurrent List is not conducive. The participatory federation created by the 18thAmendment will make our federation both workable and credible.
This new situation requires new thinking – and so a review. This is not a rollback. There is no conspiracy. There is nothing malafide in this. There is a straightforward need to bring a balance in the constitution and to face the problem that has arisen and which was found lacking in the amendments made through the 18th Amendment. There is a saying that even the best can be improved. Let us call the 18th Amendment the best that was done when it was done but now it requires a new balancing act. The nation is under a challenge and I am sure we will come through it.
The writer is a Supreme Court advocate, former federal minister for law and former president of the SCBA.