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Pakistan’s 18th Amendment: Review Of Provincial Fiscal Policy – Analysis

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Holes can be poked in the 18th Amendment akin to the Constitution of Pakistan. The fiscal policy of the provinces cannot be analyzed in isolation, rather it is intertwined with the federal government; a review of the entire system is necessary not just the 18th Amendment to resolve the fiscal shortcomings and challenges faced by provinces, this can be done through a political compromise; preferably a “balancing act” by the parliament.

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Introduction

The constitution of a country is considered to be a sacrosanct document; a social contract between the government and its citizens providing a “manual” to the erstwhile to exercise its authority. Societies are inherently dynamic, more so in contemporary times, ergo the constitution also undergoes periods of evolution otherwise it would be characterized as not only brittle but also no longer representative of its people in essence. In the case of Pakistan, the room for amendment is promised by the constitution itself, the legal due course is enshrined in it – any bill to amend the constitution has to be passed by two-thirds majority by both houses of the parliament. (Pakistan N. A., 1973) 

The 18th Amendment (Constitution Act, 2010) of the constitution of Pakistan adopted in April 2010 by the Senate and National Assembly has been hailed as a historic stride to restore the sanctity of the constitution of Pakistan by the proponents of democracy and decentralization especially after decades of de facto military rule which had disfigured its 1973 form. According to Zafar (2020), it is arguably the biggest achievement of the Zardari dispensation to date paving way for a “participatory federation”. The aforementioned amendment greatly empowered the federating units especially by virtue of the National Finance Commission (NFC) Award under Article 160 (3A).

 However, over a decade has gone by the provinces still haven’t taken adequate steps towards overhauling their fiscal policy nor are the provinces anywhere close to weaning off the dependency of the federal government in running their financial matters. This has begotten a debate over the efficacy of the 18th Amendment which is running the gauntlet of the critics of provincial capacity while, forces on the other side of the spectrum describe this as a bid to rollback provincial autonomy with the establishment of a centralized federation. Amidst the frenzy of speculations and suggestions from exponents of both the flanks, the need for review of the aforementioned amendment in the light of the procedure stipulated in the constitution can’t be written off. It could help towards addressing this fiscal policy crisis as well as implementation in true letter and spirit. (Sarfraz, 2020)

Rationale of the study

The 18th Amendment was a step to empower the federating units in fiscal matters, it should have materialized into provinces diversifying their revenue collection especially through broadening of the tax base. On the contrary, the provinces have demonstrated dismal performance in the last 10 years not playing their due role in the economic growth of the country. This has generated stirring of debate on the possible review of the 18th Amendment manifested during the early months of the current government. The need for better implementation of the said amendment is evident but there lies a lacuna in terms of the best way forward as both sides of argument blame each other for putting a political spin on the issue.

Objectives of the study

  • To analyze the institutional capacity of the provinces to run departments which became provincial subject.
  • To examine the fiscal policies of the provinces vis-à-vis tax collection.
  • To ascertain the impediments in the implementation of fiscal structural reforms.
  • To explore the impact of the 18th Amendment on the Federal government. 
  • To suggestion options for better implementation of the aforementioned amendment in order to improve the fiscal policy based on expert opinion

Historical Background

Autonomy and One Unit system (1955 – 1970) 

To understand the need for the 18th Amendment, it has to be studied vis-à-vis the controversial One Unit system. According to Singh (2018), the system was officially put in place on 14 October 1955 during Prime Minister Mohammad Ali Bogra’s turbulent tenure with the purpose, inter alia, to pace up the development of backward areas along with cutting down on administrative expenditure. However, as history narrates these objectives along with the redressing the issue of provincial prejudice didn’t materialize as this plan to forcefully integrate the heterogenous population into a unified singular identity in both wings of Pakistan with the flawed rationale of cementing the integrity of the country went in vain, creating agitation for the restoration of provincial autonomy. Pirzada Abdus Sattar vehemently opposed the One Unit system, ergo, Governor General Malik Ghulam Muhammad promised to reinstate Mohammad Ayub Khuhro as Chief Minister of Sindh with an assurance by the latter to have the bill of the new political system passed in the provincial assembly. Khuhro capitulated a colossal amount close to PKR 37,600 million to the central government of West Pakistan; the aforementioned arrangement only exacerbated the grievances of the smaller provinces until it was dismantled by President Yahya Khan in 1970. (DAWN, 2011)

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Evolution of fiscal resource distribution in Pakistan

The journey of fiscal resource distribution between federal and provincial governments in Pakistan has come has a considerable way from the pre-partition Niemeyer Award, which defined sales tax as a provincial subject, to the 7th National Finance Commission (NFC) Award given during the Presidency of Asif Ali Zardari in 2010. Following the inception of Pakistan, Raisman Award allowed for a temporary transfer of 50% of revenue from sales tax to the federal government in order to mitigate the financial existential crisis. The One Unit system brought two awards, in 1961 and 1964. The share of the East and West wing was 54% and 46% respectively for both the Awards. The 1973 Constitution obligated the government to calculate the NFC award at least once every 5 years. (Iftikhar Ahmed, 2007)

The 1st NFC Award was based on a 20:80 ratio of vertical distribution of fiscal resources between the federal and provincial government respectively. The 2nd (1975) and 3rd Award (1985) in both failed to propose the formula of distribution under the dictatorship of General Zia-ul-Haq. Following a hiatus of over 15 years, in 1990 the 4th NFC Award broadened not only the Divisible pool, but also the increased the share of the provinces in the revenue collection. Subsequently, in 1996, former caretaker Prime Minister Malik Meraj Khalid, composed the National Finance Commission which featured the federal government having 62.5% and provincial government with 37.5% share of the Divisible pool as opposed to the 1st NFC Award ratio. The 6th Award failed to produce a consensus under General Pervaiz Musharraf’s military regime in 2000. (Iftikhar Ahmed, 2007) At the moment, the 7th NFC Award is in practice; deemed as a political feat of the Zardari-Gillani dispensation (2008-2013). 

Backdrop of the 18th Amendment 

The grievances of provincial autonomy in matters of fiscal affairs were only truly addressed under the 18th Amendment, although Khan (2014) does state that the 1973 constitution lucidly recognized de jure groups along ethno-linguistic description – Sindhi, Pashtun, Punjabi and Baloch – creating a new dispensation in the shape of an “ethnic federation” providing a constitutional umbrella to ethno-centric politics as well as policies giving new life to the demands of provincial autonomy. 

The 18th amendment was much more than cosmetic changes, rather a comprehensive measure to efface the constitution of dictatorial stains incurred during General Zia-ul-Haq and General Pervez Musharraf’s protracted military regimes. Such a constitutional overhaul is without a precedent in Pakistan’s history since the creation of the 1973 Constitution as 1/3 of the constitution was amended. The concurrent list, previously featuring in the 1973 Constitution, was also revoked enlarging the obligations of legislation and administration of the federating units. In doing so, the said amendment also provided a reconfiguration of the distribution of revenues amongst the provinces with a new formula based on poverty and inverse population density. The provinces had the mandate of symmetrical share of financial, political and administrative powers through devolution under Article 140A; local government elections which have yet not materialized till date.  (Ahmed, 2020)

Operationalization

Fiscal Policy is described by Baumol and Blinder (2010) as the instrument in the armory of government interventions which modern governments deploy to redress problems or fluctuations in their economic edifice. It entails government’s control over expenditure and tax system. The Great Depression (1929 – 1933) took the entire world in its fold, compelling a prominent change in economic thinking, renowned English economist, John Maynard Keynes in his book “The General Theory of Employment, Interest and Money” (1936) suggested that government intervention can be employed as a stimulus to help the economy recover from the state of depression, mitigating the polycephaly of inflation and unemployment, for a more optimistic economic prognosis. 

18th Amendment also known referred to as the “Constitution Act 2010” received President Asif Ali Zardari’s assent on 19th April 2010, after the Parliamentary Committee on Constitutional reforms consisting of 27 members representing all major political parties in the bicameral legislature deliberated for around two years. The aforementioned committee met over 77 times amending 102 Articles of the constitution to finalize the draft to be later adopted by the parliament; 17 ministries were devolved down to provinces (Ahmed, 2020) This research will review the fiscal policy of the provinces – provincial autonomy was gained especially through massive share calculated by Divisible Pool – subsequent to the 18th Amendment and the performance of the provinces in conducting fiscal affairs. 

A province is one of the units of a state, divided usually for administrative reasons or along ethnic lines, possessing full or partial autonomy and specific laws.  Under Article 129 and 130 of the Constitution of Pakistan Provinces comprise of a Chief Minister along with his or her cabinet of Provincial Ministers who shall exercise executive authority in the name of the Governor of the federating unit.  (Pakistan N. A., 1973)

Discussion

Prior to the 7th NFC Award, the federal deficit was estimated to be around 5.5% of the GDP which went up to 6.8% in the period between 2010 to 2018 following the award. (Khan N. U., 2020 ) International Monetary Fund (IMF) in its 2017 report both criticized the 7th NFC Award as a case of vertical fiscal asymmetry while also praising the process of fiscal decentralization as in line with the principles of decentralization of economy. It also mentioned how little were the governments of the federating units were able to ramp up the public investment; only by a meagre 0.3% of the Gross domestic product (GDP). (IMF, 2017)

According to Janjua (2020), one of the most problematic aspect of the 18th Amendment is how it reconfigured the NFC award stating the share of the provinces in fiscal resources to be around 57.5 percent. In other words, critics highlight how such a mammoth transfer of fiscal resources renders the federal government ineffective in exercising its financial obligations, inter alia, limiting the capacity of debt servicing and spending on the defense. Article 160(3A) of the constitution states that the share transferred to the federating units cannot be less in the subsequent NFC award compared to the previous one.  

Based on the framework of the 7th NFC award, a colossal amount of PKR 3.2 trillion has been distributed amongst the province for the fiscal year 2019-20. To break it down, Punjab received the biggest share of PKR1.61tr followed by Sindh with PKR 814.91billion. While Baluchistan and Khyber Pakhtunkhwa received PKR 294.98 billion and PKR 533.26 billion respectively under the NFC award. (Khan I. A., 2019) If the federal government isn’t able to fulfill its national responsibilities while maintaining the autonomy of the provinces, it needs to turn to the parliament seeking for a “balancing act”- a review of the 18th Amendment. (Zafar, 2020) 

According to State Bank of Pakistan’s annual report (2018-2019), the provinces still lack institutional capacity which contributes to low tax-to-GDP ratio by virtue of low revenue collection, hurting bids for fiscal consolidation in Pakistan. The State Bank wasn’t impressed by the provincial bids on the revenue side and its allocation, which didn’t effectively close the lacuna linked with service delivery. There are several tax collection departments operating in the provinces, but sound strategy hasn’t been generated to collect income and services tax on the agricultural sector. (Pakistan S. B., 2019)

Moreover, Dr Ikramul Haq highlights how provinces are still dependent on the federal government; the revenue related projections of the fiscal budget 2020-21 of the two largest provinces, Punjab and Sindh are directly based on how the Federal Board of Revenue (FBR) fares, in other words the PKR 4.963 trillion tax collection goal of the federal tax agency for the fiscal year (FY) 2020-21. In doing so, the fiscal policy of the provinces fails to differentiate between projections and the actual doleful performance of FBR, which needs massive reforms itself to broaden the national tax net. Take the example of Punjab, 43% of its total resources come directly from the Divisible pool, which is estimated around PKR 1.43 trillion of the total PKR 2.24 trillion of the above-mentioned FY. However, since the tax targets set by FBR appear to be unachievable ergo, this federal shortfall reduces the share of the provinces, as in the case of the PKR 125 billion surplus which was to be received by Punjab based on the projections, only remains on paper; developmental projects of the province suffer rather than cuts in the non-productive expenses to address fiscal discrepancy. In addition, despite being the most populous province – 2017 census states a population of 110 million in Punjab – with greater industrial units and bigger cities only neared 35.5% of the tax target of PKR 295 billion in the first half of the current fiscal year, amounting to around PKR 104.6 billion. (Tax target of Punjab revised down to PKR 220 billion due to COVID-19). In contrast, Sindh – 2017 census states a population of 47.88 million in Sindh – with fewer urban centers and industrial as well as agricultural production, fared better setting the revised tax target to PKR 264 billion for FY 2020-21, 44 billion more than Punjab. (Haq, 2020)

Haq (2020) also argues the fiscal quandary ensuing from the incompetence of the province to levy progressive taxation under the 18th Amendment i.e. estate duty, gift tax, capital gain tax et cetera are now provincial tax subjects. In addition, agricultural and property tax present bleak picture with paltry collection due to the overwhelming presence of “seigneurs” and the uber rich in the provincial legislatures. The same stratum of the social pecking order opposes to fiscally, politically and administratively devolve responsibilities to local government representatives under Article 140A. 

Tahir et al. (2012) describe the NFC award as a political award highlighting the massive disproportion between the generation of resources by the federation and its units, 93% and 7 % respectively, manifesting a serious lack of research before the implementation of the Award. The provinces failed to display fiscal disciple coupled with the inability to manage spending expenditure with prudence. With this it has also worsened the issue of provincial debt under Article 167, which allows to borrow both domestically and internationally with the limits defined by National Economic Council (NEC). Avenues of corruption have also multiplied for the provincial political actors as provinces have greater fiscal autonomy and opportunities.

Sumra (2017) here points to the issues of coexistence between the powerful provincial bureaucracy and local government structure in the aftermath of the 18th Amendment. She analyzed the parallel administrative and power in the capitals of the four provinces of Pakistan. Her findings help us understand the serious issue of capacity and lack of expertise of the local governments in running fiscal as well as administrative matters. Their limited autonomy is challenged by the local bureaucracy, who prefer running fiscal matters through unelected officials and civil servants. Moreover, since funds are allocated by the provincial government, they task the bureaucracy with fiscal and developmental matters. The Municipal Corporation of Karachi, dominated by Muttahida Qaumi Movement (MQM), has attracted notoriety for being “overstaffed”, highlighting the lack of political and transparency amongst this tier of the government. To sum it up, since the inception of Pakistan, “bureaucratic oligarchy” was a pre-partition institution developed by the British, have been entrenched in the state with decades of expertise in management over the flimsy local government structure. The local government representatives are seen as inapt and unfit by the local bureaucracy, the latter believes that the local government structure will not remain political alive and eventually case to exist. It is described as a lopsided turf war between the two which impedes the devolution of fiscal powers to the local governments contributes to the already limited services delivery of district and tehsil councils due to scarcity of trained staff and equipment. 

On the other hand, Hussain (2019) describes the flak on the 18th Amendment as groundless, arguing that it doesn’t have a direct link to the constraints of the federal government in terms of debt servicing, rather it is due to the economy being in an abysmal shape. In addition, the aforementioned amendment hasn’t weakened the capacity of the federal government by introducing a confederal set-up, rather greater autonomy of the federating units underpins the strength of the state. 

Haque (2020) describes the process behind the 18th Amendment as lacking political and intellectual debate, done in hasty fashion just like how various constitutions of Pakistan were created. But the fiscal quagmire of the federal government is more of a case of their own doing. Since Pakistan’s constitution constructed over the colonial foundation of fiscal and administration affairs, 18th Amendment was just a legal patchwork on the outdated colonial system. It is important to dissect the system we inherited from the British, which didn’t really feature development as a mandate of the government, therefore we see a myriad of wasteful developmental projects, with very low return such as the Metro Bus Service. No productive discourse comes out of National Economic Council (NEC), reflecting a serious lack of commitment to straighten out the fiscal policy holes. The 14th Amendment which is inherently undemocratic, allows to pass the budget without parliamentary debate on it. Similarly, this trend of adopting amendments just as in the case of the Constitution Act 2010, is done in a vacuum without factoring in the Economic dimensions and ramifications. Moreover, the federal government ought not to have more than 8 ministries after the 18th Amendment, but there are still around 45 ministries at the federal level monumentally contributing to fiscal deficit as well as wasteful spending; the provinces can’t be blamed for it but they do get adversely impacted in running fiscal affairs by virtue of federal shortfall. It is absolutely ludicrous to see how the subject of Agriculture devolved to provinces was replaced by Ministry of Food and Security as part of federal government, similarly after Education was devolved, it cropped up the Ministry of Human Resources at the federal level, contrary to the spirit of the 18th Amendment. 

In addition, the 18th Amendment doesn’t address the holes in public expenditure as there are around 500 agencies operating at federal level as identified by Dr Ishrat Hussain, which need to be instantly closed in order to stop the fiscal hemorrhage. With this, the 18th makes no mention of public sector enterprises which are operating with a loss of over PKR 1.5 trillion – the energy sector is running with a loss of PKR 5.5 trillion on an annual basis over the last 9 to 10 years.  But the pretext of transfer of money to provinces is cited by the federal government for its massive fiscal shortcomings. Conversely, it is true how the provinces continue to protect their financial powers against the local government, but the 18th Amendment isn’t hindering from introducing fiscal reforms. In terms of capacity issues of the provinces, there isn’t much difference of fiscal capacity between the top two tiers of government; only difference is that the federal government inherited the colonial structure unlike the provinces. The debate isn’t that fault entirely lies with the 18th Amendment, – it was adopted without an intellectual back-up – but an issue of how to get back control at the federal level to facilitate federal finances. The irony is that even after the said amendment, the federal government continues to spend in profligate fashion amassing massive debt and not allowing the local government to exercise fiscal powers i.e. managing spending. (Haque, 2020)

Faisal Bari who is a professor at the department of Economics, Lahore University of Management Sciences (LUMS) argues that a significant portion of the money coming from the Divisible pool is spent by the provinces on service delivery in the areas such as sanitation, education, health et cetera. Hypothetically speaking if 57.5% of Federal Consolidated Fund (FCF) is given back to the federal government, it will have to use this money for the same purpose as in the case of the provinces i.e. service delivery, not helping with the federal deficit. (Khan F. S., 2020)

Furthermore, Mehboob (2020) refers to how Council of Common Interests (CCI) as a “super cabinet” and as the likes of S.M. Zafar describe it as a “Government within a Government” making matters especially related to fiscal policy too time-consuming and intricate; this is despite the council being not as functional as it ought to be. With the abolition of the Concurrent List, 43 out of 46 subjects were devolved, inter alia, Health, Labor and Education which are trans-provincial matters related to provincial spending and partially functional CCI is the platform for it. First 21 months of the Imran Khan dispensation only had 3 as opposed to 7 meetings reqiured, while the NEC had 2 instead of 4 meetings. Under Article 140 A, fiscal powers along with administrative powers have to be devolved to local governments, however, neither the 18th Amendment nor the constitution contain a framework for this tier of the government. In contrast, the 73rd and 74th Amendment of the Indian Constitution gives an elaborate structure of local governments, addressing questions like length of the term and type of elections i.e. direct or indirect. Here the concern of the federal government regarding setting the provincial share of Federal Consolidated Fund (FCF) at 57.5% under Article 160 (3A); which can only be increased needs to be discussed as well. In composing the 10th NFC Award, the federal government is trying to find a way to revise this formula. 

Recommendations

It has been over a decade since 18th Amendment was adopted by the parliament but the provinces are yet to introduce structural reforms especially in the area of taxation. Haq (2020) suggests that there is a need coalesce the various tax agencies/ departments in the provinces which collect excise, sales tax such as the Revenue board. A one-window facility could multiple the dividends by ensuring ease of doing business – policy of ease of doing business has been reiterated by Prime Minister Imran Khan – cutting down cost of operation, contributing to the national exchequer. Moreover, setting provincial fiscal budget solely on the share in the Divisible Pool and the elusive targets of FBR won’t address the needs of the increasing populace of the provinces. Under Article 156(2) of the constitution, the National Economic Council – representatives of both tiers of the government, federal as well as provincial government – must exercise the mandate to exploit the actual tax potential of Pakistan. Another innovative solution can be the establishment of All Pakistan Unified Tax Services (APUTS) through restoration of Article 144/149 of the constitution serving as a national tax agency. Moreover, the current tax collection mechanism needs to be automated; this could even limit the pervasive financial corruption and bribery in tax collection departments, help in confidence building of the tax payer. The provinces also need to have a greater input than they currently have in the tax reforms and policy, since the federating units are on the receiving end of the performance of FBR and calculation of the NFC award. A federalized tax collection modus operandi and policy based on low rate and simplified taxation could be amongst the workable solutions to this fiscal quagmire. 

Issues of bureaucratic inertia and provincial preparedness of sharing of responsibilities as discussed above could justify bringing back the concurrent list. Zafar (2020) delineates on the recommendation that restoration of the list with limited subjects can not only help the federation which is struggling managing its financial matters but more importantly understanding the true purpose of the concurrent list, the federal government could provide much needed guidance to the provincial government in running, inter alia, institutional support and fiscal policy overhaul.  

Haque (2020) recommends that the federal as well as provincial government need to review its expenditure side – cease creating new agencies such as real estate regulatory authority and housing authority which ought to be at the local government level instead. Similarly, the presence of board of investment at both top tiers of the government only shows poor fiscal policy and multiplication of expenses. There can be a debate on the tax expenditure budget policy which is flexible despite the formula of the share in Divisible pool not going below the previous NFC Award. An important area of the 18th Amendment is the General Sales Tax (GST) and Value Added Tax (VAT) which require an integrated system of one point of collection. This can even be done without a revision in the constitution, by giving the Sales tax collection to the provinces. Furthermore, Pakistan’s tax policy is in tatters, with fixation on compliance than on development; it needs to undergo rationalization.

Provinces need to devise a strategy to tap the great potential of property income tax along with other high potential sectors, which will help them diversify their revenue side as well as help to wean off the overwhelming dependence on the Divisible pool. Another innovative suggestion is to include micro financing development projects as part of the provincial policy which can be instrumental in catalyzing business growth. (Haq, 2020)

To put it in a nutshell, both sides of the debate need to promote open and civilized discourse on the matter at hand. Sensitivity must be employed keeping in mind the symbolic bond smaller provinces have with the 18th Amendment – struggle against Takht-e-Lahore and Takht-e-Islamabad features in the sub-national literature and mythology of the Baloch, Pakhtun and Sindhi culture akin to anti-colonial movement. In lieu of making dangerous analogies between the 18th Amendment and the “6 points” of Sheikh Mujibur Rahman or exercising judicial option (Mehboob, 2020), there needs to be a national dialogue for the evident requirement for a consensus in the parliament for the review – amending the 18th amendment should be described as amending the constitution for political sensitivity – since the fiscal performance of the provinces are interconnected with the federal government, vice versa. Akin to the Federalist papers – John Jay, Alexander Hamilton and James Madison explained the US Constitution in what they called the “Federalist papers” in 1788 – intellectual fraternity and constitution framers of Pakistan need to research, and write more on the constitution, for an overview of the entire system including suggesting solid fiscal solutions and reforms at all tiers of the government; just reviewing a single amendment will not do. (Haque, 2020) Unfortunately, instead of an intellectual debate, with political compromises by both flanks, centralists and federalists are at loggerheads with each other – the current dispensation announced a development package of PKR 600 billion for Southern Baluchistan, bypassing the provincial legislature (Ali, 2020) only adding to the qualms of the defenders of provincial autonomy who see this as a presage of rollback of the 18th Amendment.

*About the author: Muhammad Firas Shams is currently doing MPhil Public Policy from the Center of Public Policy & Governance at FCCU. He was formally associated with the think tank, Islamabad Policy Research Institute (IPRI).

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