Professional Documents
Culture Documents
Muhammad Ali
Young Parliamentary Associate
Abstract
The 18th amendment in Constitution of 1973 is a bold step towards strengthening the democratic
set up of Pakistan. The object of Provincial Autonomy is secured by abolishing the Concurrent
List and involvement of provinces in legislation on subjects mentioned in Federal Legislative
List II. The 18th amendment has empowered the provinces to legislate on many important matters
exclusively and at the same time made them more responsible.
The demand of provincial autonomy was there from the very first day. Autonomy means the
quality or state of being self-governing; especially: the right of self-government.iv The provinces
in Pakistan always wanted to have control over their own affairs.
constitution by election of 80 thousand Basic Democracy (BD) members, 40 thousand from each
wing.
In 1973s constitution, there is equal number of seats for all four provinces in upper house, the
Senate. National Assembly, the lower house has population based representation from each unit.
The second aspect of provincial autonomy is division of powers between federation and
provinces. It is believed that federation basically is the voluntary association of the units or
provinces in case of Pakistan. In 1956s constitution, three lists were provided in fifth schedule; i.
Federal List, ii. Provincial List, and iii. Concurrent List. The provincial legislature could
exclusively legislate on 94 subjects mentioned in Provincial list, on 19 subjects with federal
legislature, provided in concurrent list, and also on residuary subjects with federal legislature.
The federal legislature was dominant as it could exclusively legislate on 30 subjects, on 19
subjects with provincial legislature provided in concurrent list and on residuary subjects. The
federal legislature had overriding powers over provincial legislature. The Constitution of 1956
had made Federation very powerful by bestowing tens of powers as compared to provinces.
The Constitution of 1962 followed a similar division. The Third schedule of constitution had
empowered federal legislature to legislate exclusively, and provinces were given power to
legislate on any subject not provided in third schedule. But federal legislature was also
empowered to legislate on any subject not incorporated in third schedule; furthermore, it could
override any provincial law and invalidate it, if inconsistent with federal law. The federal
government was very powerful than provincial governments and even the executive authority of
a province was exercised by Governor, who was an appointee of President.
instigated by six points of Mujib ur Rahman. Six points by Mujib ur Rahman were an extreme of
provincial autonomy.
Keeping in view what had happened earlier, some valuable additions were made in the
constitution of 1973 to secure provincial autonomy and to provide safeguard to provinces against
any injustice in any regard. A council of common interest was established under article 153. The
council is constituted by the President and comprised of Chief Ministers of the provinces and
equal number of the members from the federal government nominated by the Prime Minister.
The councils basic function is to regulate matters between the federation and provinces. For the
solution of disputes of financial nature and economic problems, the National Economic Council
was established. Special provisions for the supply and distribution of electricity, requirement of
natural gas and broadcasting and telecasting were provided. The federal government is to collect
duty of excise on natural gas and to pay it to province where the well head of natural gas is
situated. The profits collected by the federal government on power generated at a hydro-electric
station are payable to the province where it is located.
Federal Legislative List I: before and after 18th amendment and Impact
There are two lists mentioned in Schedule IV of constitution: Federal legislative list and
concurrent Legislative List, these two lists are the main source of legislation in our country.
Federal legislative list define the extent of provincial autonomy and relation between the
federation and its federating units. It contains 59 subjects which is exclusive domain of
Federation. Following are the changes in Federal Legislative List I after 18th amendment.
1. After amendment the in the Entry No.18. Nuclear energy, Boilers moved from Entry 29 of
concurrent legislative list, placing under exclusive domain of federation.
2. Entry No. 21 is Omitted and Moved from the Federal Legislative List Part I to Federal
Legislative List Part II at serial number 5. The entry and the resources and related institutions
thereof will now c o m e u n d e r t h e j o i n t supervision and control of the Federation and
the Provinces to be exercised by the Council of Common Interest.
3. Entry No 32 National planning and N at i o n al e co n o mi c c o - ordination including planning
and co-ordination of scientific and technological research is substituted by International treaties,
Conventions
and
agreements
and
International
arbitration.
The
old entry moved to Federal Legislative List Part II at Serial number 7. The substitutedentry
and
j o i n t supervision and control of the Federation and the provinces to be exercised through
the Council of Common Interest.
4. Entry No. 33, State Lotteries is deleted from the Federal Legislative list Part I and not included
in any other list. Hence automatically devolved to the provinces.
5. Entry
No.
38,
Census
is
Substituted
List
Part
by
II
new
entry.
at serial number 9.
The
The
belonging to any Province to any area in another Province, but not so as to enable the
police of one Province to exercise powers and jurisdiction in another Province without
the consent of the Government of that Province; extension of the powers and
jurisdiction of members of a police force belonging to any Province to railway areas
outside that Province, is omitted and Substituted by new entry. The old entry moved to
Federal Legislative ListPart II at serial number 10. The substituted entry and the r e s o u r c e s
a n d r e l a t e d institutions thereof will now c o m e u n d e r t h e j o i n t supervision and
control of the Federation and the Provinces to be exercised through the Council of Common
Interest.
7. Entry No. 45 about Duties in respect of Succession to property is deleted from
the
Federal
Legislative list Part I and not included in any other list. Hence automatically devolved to
the provinces.
8. Entry No. 46 regarding Estate duty in respect of property is deleted
from
the
Federal
Legislative list Part I and not included in any other list. Hence automatically devolved to
the provinces.
9. Entry No. 49 about Taxes on the sales and purchases of goods imported e x p o r t e d ,
p r o d u c e d , manufactured or consumed, is amended by insertion of new words, except
sales tax on services in the end. The insertion of new words excludes sales tax on services
f r o m t h e d o m a i n o f Federation. The subject is the exclusive domain of the
provinces.
10. Amendment in Entry No. 50 has empowered the federation to tax the capital gain on
immovable property.
Federal Legislative List II: before and after 18th amendment and Impact
It contains 18 subjects which are exclusive domain of Council of Common Interest. After the
18th amendment, Concurrent Legislative List was abolished bringing all subjects contained
therein, with certain exceptions, under the exclusive domain of provinces. Subjects like
Lotteries, duties in respect of succession to property and estate duty in respect of property were
deleted from Federal Legislative List-I bringing them in the exclusive domain of provinces.
Few subjects from Federal Legislative List-I like major ports, national planning and national
economic coordination, census and extension of powers of police force to other provinces, and
few from Concurrent Legislative List like electricity and legal, medical and other professions
were moved to Federal Legislative List-II; besides, some new entries like regulatory authorities
under federal law, supervision and management of public debt, standards in higher education
institutions and interprovincial matters and coordination were added thereby enhancing the list
of subjects under the supervision of Council of Common Interest.
These changes in the Federal List has increased provincial autonomy and enhanced list of areas
for Council of Common Interest now Provinces under the purview of Council of Common
Interest will be able to discuss the matters related to the new entries .It means that all policy
decisions on above mentioned subjects will henceforth be within the domain of the Council of
common Interests.
1.
Entries No. 1. Railways, 2. Mineral oil and natural gas; liq uid s an d
sub st ances declared by Federal Law to be dangerously inflammable, and 3.
Development of industries, where development under Federal control is declared
by Federal law to be expedient in the public interest; institutions, establishments, bodies
and corporations administered or managed by the Federal Government
immediately before the commencing day, including the Pakistan Water and Power
Development Authority and the Pakistan Industrial Development Corporation;
all undertakings, projects and schemes of such institutions, establishments, bodies
and corporations, industries, projects and undertakings owned wholly or partially
by the Federation or by a corporation set up by the Federation, are not amended
or changed. They are same as before.
2. Entry No.4 is now Electricity instead of Council of Common Interests. Old entry
now appear s at number 14 of this Part. The new entry e lectr icity
transferred from Entry 34 of concurrent legislative list.
3. In EntryNo.5 the words Major ports, that is to say, the declaration and delimitation of
such ports, replaced the words Fees in respect of any of the matters in this Part
but not including fees taken in any,. Old entry now appears at Number 15 of
this Part. The word court is replaced by and the constitution and Powers of port
authorities therein. The new entry transferred from Entry 21 of the Federal
Legislative List Part I. The entry and the resources and related institutions thereof
will now come under the joint supervision and control of the Federation and the
Provinces to be exercised through the Council of Common Interest.
4. In Entry No.6 the words, Offences against laws with respect to any of the matters
in this Part are replaced by All regulatory authorities established under a Federal
law. Old entry now appears at Number 16 of this Part. The new entry explicitly
places federal regulatory authorities under the control of Council of Common Interest.
5. In Entry No.7 the words Inquiries and statistics for the purposes of any of the
matters in this Part are replaced by National planning and national economic
coordination including Planning and coordination of scientific and technological
research. Old entry now appears at number 17 of this Part. The new entry transferred
from Entry 32 of the Federal Legislative List Part I. The entry and the resources and
related institutions thereof will now come under the joint supervision and control of
the Federation and the Provinces to be exercised through the Council of Common
Interest.
6. In Entry No.8 Matters incidental or ancillary to any matter enumerated in this
Part are replaced by Supervision and management of public debt. Old entry now
appears at number 18 of this Part. The new entry and the resources and related
institutions thereof will now come under the joint supervision and control of the
Federation and the Provinces to be exercised through the Council of Common
Interest.
7. Entry No.9, Census is moved from Entry 38 of the Federal Legislative List Part I.
The entry and the resources and related institutions thereof will now come under the
joint supervision and control of the Federation and the Provinces to be exercised
through the Council of Interest.
8. Entry No. 10 Extension of the powers and jurisdiction of members of a police force
belonging to any Province to any area in another Province, but not so as to enable the
police of one Province to exercise powers and jurisdiction in another Province without
the consent of the Government of that Province; extension of the powers and
jurisdiction of members of a police force belonging to any Province to railway areas
outside that Province is moved from Entry 40 of the Federal Legislative List Part I.
The entry and the resources and related institutions thereof will now come under the
joint supervision and control of the Federation and the Provinces to be exercised
through the Council of Common Interest.
9. Entry No.11 Legal, medical and other professions is transferred from Entry 43 of
concurrent list.
10. Entry No. 12 is Standards in institutions for higher education and research, scientific
and technical institutions, this new entry placing education above Grade 12 under
the joint supervision and control of the Federation and the Provinces to be
exercised through the Council of Common Interest. The old subject Curriculum,
syllabus, planning, and policy, centers of excellence and standards of education
appeared as Entry No.38 in concurrent list.
11. Entry No.13 is Inter-provincial matters and co-ordination, this new entry which
provides for co - o r d ina ti o n be tw ee n federation and provinces and also provides
mechanism to deal with inter-provincial matters.
12. Entry No. 14, Council of Common Interest, Entry No. 15, Fee in
respect of any matters in this Part but not including fees taken any
Court, Entry No. 16, Offences against laws with respect to any of
the matters in this Part, Entry No. 17, Inquiries and statistics for the
purposes of any of the matters in this Part and Entry No. 18, Matters
incidental or Ancillary to any matter enumerated in this Part, are renumbered only.
The subject of 'boilers' insofar as they relate to nuclear energy has been transferred to the Federal List;
ii.
The subjects of 'National Planning and National Economic Co-ordination including Planning and Coordination of Scientific and Technological Research' at serial no.32 of the Federal List Part-I have been
transferred to serial no.7 of the Federal List Part-II. This transfer means that these matters shall henceforth
be under the over-all policy control of the Council of Common Interests;
iii.
In place of 'National Planning and National Economic Co-ordination, etc.' at serial no.32 of the Federal
List Part-I we now have "International treaties, conventions and agreements and International
Arbitration." These are new additions to the Federal List;
iv.
the subjects of 'Major Ports,' State Lotteries,' 'Census,' Extension of the powers and jurisdiction
of members of a police force belonging to any Province to any area in another Province,' Duties in
respect to succession to property,' and 'Estate Duty in respect of property' have been removed from Part-I of
the Federal List; 'Major Ports' has been added to the Federal List, Part-II.
i.
Federation's powers to levy taxes on sales and purchases no longer include power to levy sales tax on
services which is now therefore to be a provincial tax.
Import and export of food grains and food stuff including quality control/assurance,
availability and storage
ii.
Plant Protection Pesticide Import and Standardization, Aerial Spray, Plant Quarantine
and locust control in its International aspect and maintenance of locusts warning
organization
iii.
iv.
i.
II.
Health Regulation.
III.
International Commitments.
IV.
National health policy. (with respect to Federal mandate in health along with
strong justification for retaining the national role in health)
Education
Before 18th amendment the Constitution of 1973 visualized education as a joint function of
both the federal and provincial levels. At the federal level the Ministry of Education
formulated policies, plans and the national curriculum. The Federal Education Ministry
oversaw and administered 17 subordinate institutions, 06 autonomous bodies, 02 attached
departments and 14 chairs in the foreign universities. The provinces developed their own planning
and implementation schemes in accordance with the national education policies and plans. All the
provinces possessed similar administrative structures, that is, Departments of Education with
Secretaries as administrative head of the organizations, supported by a provincial directorate as
well as divisional and district formations. Punjab and Khyber Pukhtunkhwa have separate
departments for School (Elementary & Secondary) and Higher Education, whereas in Sindh
and Balochistan all the functions are performed by a single Department of Education.v
The concurrent legislative list which included the subjects in the shared legislative jurisdiction
of Federation and provinces has been omitted. In context of education the two key entries of
concurrent list which stand devolved to the provinces include:
Entry 38: Curriculum, syllabus, planning, policy, centers of excellence, standard of education. &
Entry 39: Islamic Education
The enactment has omitted Sixth and Seventh Schedules altering Article 268(2) and Article
270(A) of the constitution. The omission has revoked the constitutional protection for the
following Statutes: The privately managed Schools and Colleges (Taking over) Regulation 1972;
Agha Khan University Order 1983, the National College of Textile Engineering (Governing
Body and Cess) Order, 1985, and the Lahore University of Management Sciences Order.1985.vi
Inclusion of Article 25-A as a fundamental right in 18th amendment has recognized Education as
a Fundamental Right of children up to 5 to 16 years of age in Pakistan. This is an important
socioeconomic development. It is now responsibility of the provincial government to deal with
this issue, although it is a responsibility but it also has empowered the provincial Government
under (Entry38 &39) to legislate and administer educational sector.
Conclusion
The 18th amendment is a landmark progress made by Pakistan in context of provincial autonomy.
The separation of East Pakistan was mainly because of feeling of deprivation by people of East
Pakistan. The 18th amendment by transfer of powers to provinces, laid the foundation of a strong
federation. It has abolished the Concurrent List from IV Schedule thus allowing provinces to
legislate exclusively on many important matters. Many important matters like Health and
Education are responsibility of State as far as formation of National Policy is concerned but
policy implication and many other powers at grass root level are now in the hands of provinces.
The amendment has also made bodies like Council of Common Interest and National Economic
Council more effective and their role more vital.
This amendment is a single step taken by the federation but surely a giant leap towards true
democracy where people are truly empowered to take decisions and enforce them. Now it is
responsibility of the provinces to not only legislate but to take adequate measures for welfare of
general public.
. McKean E. (editor), (2005). New Oxford American Dictionary, (2nd ed). Oxford University Press.
ii
Bryan A. G. (editor), (2004). Black's Law Dictionary (8th ed). West Group.
Autonomy.2013. In Merriam-Webster.com. Retrieved August 8, 2013, from http://www.merriamwebster.com/dictionary/autonomy
iv
Legislative Brief. 2011. Health and 18th Amendment constitutional amendment retaining national roles in
devolution. PILDAT. Available At: www.pildat.org
vi
18th Constitutional Amendment Issues and Challenges in Curriculum and Standards. Institute of social and Policy
Sciences (I SAPS).