The Enigma of Federalism in Pakistan

Federalism, says Dicey, is a political contrivance intended to reconcile national unity with maintenance of state rights. The philosophy, therefore, is to have a political system where central government possesses limited powers so that it may not infringe upon the rights of the federating units. According to a research, today, there are approximately 28 countries practicing federalism, e.g. Argentina, Canada, Iraq, Brazil, Australia, Ethiopia, Pakistan, and no less than 40 percent of the world population is in these federal structures. Federalism comes from the Latin word ‘Fuoedos’ which means a voluntary contract, treaty or a covenant between two or more than two stakeholders willing to cooperate. In this way, we have seen that the countries practicing federalism face various problems and issues relating to distribution of powers and resources, ethnic imbalances and various constitutional predicaments. Therefore, they have developed their own mechanisms to deal with those matters by consensus.

Pakistan, being a federal state, has also faced similar issues since its inception. It took the country’s legal and political minds nine years to make a constitution for the country while India did not face such a delay. Thus, Pakistan was seen vacillating between different forms of government; from a parliamentary in 1956 to a presidential one in 1962. Provincial autonomy, an essential feature of a federal structure, was smashed to the ground through introduction of the infamous ‘One Unit’ formula. Military dictators trimmed and moulded the constitution to their favour only to remain longer in power. They, at several times, destroyed the spirit of this structure by initiating a rule of military-bureaucracy oligarchy.

Resultantly, the marginalized provinces started questioning the legitimacy of the federal government due to unequal distribution of resources. In Balochistan, secessionist movements started with the formation of Balochistan Liberation Army (BLA). In Sindh, a large number of people were arrested only because they were demanding that their due rights be granted to them. Pakistan was dismembered in 1971 when East Pakistan got separated and the principal reason behind this was, again, not granting people their due rights. Mistrust that was developed at that time still haunts the country in different forms and manifestations.

The Constitution of 1973 adopted on 12th of April 1973 by the then-Prime Minister of Pakistan, Zulifqar Ali Bhutto, proved to be light at the end of the tunnel: ushering a new era of political and constitutional maturity. Three lists, i.e. Federal, Provincial and Concurrent, were added to divide the areas of power between the center and the federating units. It fulfilled the ideological and democratic aspirations of the people as a mechanism in the form of Council of Common Interests (CCI), National Economic Council (NEC) and National Finance Commission (NFC) Award was developed to address the issues of federation such as distribution of resources. But the fruits gained through this constitution did not last long as the imposition of martial law by General Ziaul Haq scuttled the progress. In 1985, he introduced the controversial 8th amendment to the constitution and brought in Article 58(2)(b) that gave vast powers to the head of state, especially the one to dissolve the legislature, if deemed necessary. From 1985 to 1999, this section caused dissolution of five elected governments. Although Nawaz Sharif government tried to revive the parliamentary democracy by introducing the 13th Amendment, yet General Pervez Musharaf put the 1973 constitution in abeyance and revived this power through the 17th Amendment, once again making the head of state wield vast powers.

Nonetheless, the dream of abolishing the Concurrent List once and for all became a reality in 2008 when PPPP-led government formed a parliamentary committee to make a way for the changes in the 1973 constitution under the leadership of a renowned parliamentarian and then- Chairman Senate, Raza Rabbani. After two years of deliberations, the 18th amendment became a law in 2010 and was termed as a mini-constitution.

The passage of the 18th amendment was regarded as a watershed moment in the chequered constitutional history of Pakistan. It was for the very first time that the president had relinquished his powers willingly, transferring those to the Parliament, ergo Prime Minister. It was a radical step as it returned the country to a participatory federation in line with the 1973 constitution. This landmark amendment introduced changes to about 36 percent of the constitution as 102 out of 280 articles were amended or added. Thus, it redefined the structural contours of the state through a paradigm shift from a heavily centralized to a predominantly decentralized federation.

The major changes brought about through this amendment were as follows:
Firstly, amendment to Article 6 was made in order to preempt military coup in future. It stopped non-democratic forces to dominate the political landscape of the country. It is thought that the said article was part of the 1973 constitution of Pakistan but still military generals found a way to derail the democratic process. In this way, harsh language was used in the amended article 6 to send a clear message that if anyone tried to abrogate the constitution, he will be charged with high treason that carries death penalty. A court ruling against General Musharraf is a clear manifestation that nobody will be allowed to go scot free.

Secondly, it struck down the infamous article 58(2)(b) inserted by the General Zia. Through this article, the head of state wielded vast powers and he could sack the elected prime minister with a single stroke of the pen. The deletion of this article returned the power to the parliament. Maintaining the spirit of a parliamentary structure, president now became a titular head with ceremonial powers. Now, as Bagehot says, “He reigned but did not rule.”

Thirdly, the 18th Amendment eliminated the “Concurrent List,” i.e. the enumeration of areas where both federal and provincial governments may legislate but federal law prevails. Laws governing marriage, firearm possession, labour, educational curricula, environmental pollution, bankruptcy and 40 other diverse areas were placed under the provinces’ purview as they would have exclusive jurisdiction to legislate on these issues

The 18th constitutional amendment has impacted the mandate of several federal ministries, and, by implication, increased the roles and responsibilities of the related institutions and administrative structures at the provincial level. According to the United Nations Development Programme (UNDP), another important, yet under-reported, change now specifies that future National Finance Commission Awards, which set the distribution of national revenues between the central government and the provinces, cannot reduce the provinces’ share beyond that given in the previous agreement (Article 160). Provincial governments also now have greater authority to raise domestic and international loans and give guarantees on the securities of Provincial Consolidated Fund.

However, the administrative and financial freedom extended to the provinces through the said amendment has been a thorn in the eyes of the federal government. It is blamed that the amendment has weakened the central government’s authority over the purse of the country. This debate highlights the deep socio-political and economic fissures in our political system that has resulted into two major factions, i.e. those in favour of unitary and presidential form and those who support a federal parliamentary structure. The latter group asserts that unitary or presidential form of government can never be a solution to myriad political and financial problems of the country.

The critics of the amendment say that the transfer of fiscal resources to the provinces has limited financial space for defence expenditure by the federal government and debt-servicing that eat up the biggest chunk of the budget. Various economists repudiate this view by saying that the federal government, even after paying for defence, is left with surplus funds. Bad economic conditions are not due to the 18th amendment, but due to imprudent economic policies and bad financial management.

In the light of the above arguments, it can be concluded that there is a great need for bringing in the idea of cooperative federalism in Pakistan where diversity of cultures and harmony of interests should be made possible. The 18th Amendment and National Finance Commission (NFC) Award have paved the for equality and unity in this way as it was the need of hour as well to give provinces what was their due on an equitable basis. Still more work is needed to ensure that the true spirit of federalism prevails and its dividends are reaped.

The writer holds an MPhil degree in Political Science. His areas of interest are history, politics and current affairs.