Undoing a federation

Recent developments regarding undoing the 18th Amendment of the Constitution have stirred up a debate between the government and the opposition and caused disturbance among those governed. This is no ordinary question but is something about the long due autonomy to the provinces which was taken away by use of an iron hand by the military dictators, wanting a one-man show in the country. The questions regarding who will benefit from undoing the amendment remains unanswered and a silence prevails over the fact that it is not the provinces they want to clip wings of independent people who should decide who and how to be governed.

Federations are formed by independent countries, which get along to achieve a common purpose, i.e. defense against external aggressions etc. It is defined as a group of states with a central government but independence in internal affairs. In short, all 4 provinces of Pakistan are independent states that remain in the Federation of Pakistan to achieve a common intention which is kept in the federal legislative list.

The concept of Federation is to keep the units strong, powerful and independent by giving it the powers, whereas, the center is kept limited to a few listed authorities which are clearly provided for in the 4th schedule of the constitution of 1973.

The COVID-19 pandemic gave a rise again to a debate and propaganda on the centralized control of resources and funds by the Federal Government

Article 1 of the Constitution of 1973 says, “Pakistan should be a Federal Republic”. However, undoing the 18th amendment will make the center powerful and the Federating Units subject to the will of the majority province and bend the basic structure of the constitution by making the country a confederation in violating of Article 1.

There are a total of 77 legislative subjects the parliament is empowered to legislate on, like Currency, Defense, External Affairs, Military, Aviation, Electricity, Natural Gas etc. made part of the Federal Legislative list in the 4th schedule of the Constitution of Pakistan. This makes our center more powerful as compared to other Federations and its Federating units i.e. the provinces/ states. After the removal of concurrent list from the constitution through the subject amendment, three enumerated competences still exist with both Federal and Provincial Governments in shape of Criminal Law, Civil Procedure and law of Evidence as observed in PLD 2018 Sindh 448. An option remains open under Article 144, when a province deems necessary that the parliament legislate for it, it can, through a resolution in the provincial assembly allow it which makes the Federation ‘almighty’ in times of need, yet those in power remain thirsty.

The concept of Federation is being followed in the US in letter and spirit, which remains an example for the rest of the world. The states have their own Bi-Cameral Legislature and Supreme Judicial courts while the Federation has its own, while these states resist Federal policies which go against their state policies. Recent examples can be that of the immigration policies of Donald Trump.

One of the major issues at hand is giving provinces a bigger share in the economic pie, which finds basis in the concept of a federation in itself. The federation takes more than the required share of taxation from the budget yet drools over the finances given to the provinces and dripped on the local authorities, which is lawfully of the people dwelling therein

Bangladesh’s separation in 1971 has left a bitter taste of centralization of power, resources, funds and provincially involved civil bureaucracy controlled from Islamabad yet we do not learn from the past. Since 1971, not even once have we thought of re-imagining the blunders, we did which cut us in half but are bent upon redoing the same debacles. We have experienced an unprecedented imputation, yet we want to pave way for another cut to see if it hurts. The COVID-19 pandemic gave a rise again to a debate and propaganda on the centralized control of resources and funds by the Federal Government, after its policies clashed with that of Sindh and it could not overpower it or bring uniformity of policies like it did in the rest of the country. This reminds us of a party named the Pakistan Tehreek-i-Insaf that kept debating benefits local delegation of powers but after coming into power did everything to usurp power and dictate through mouthpieces sitting on thrones of federating units of the country.

The Supreme Court of Pakistan has made its utmost efforts to make the 18th amendment fail even though it was restored following a painful struggle of lawyers against the former military dictators. It gave decisions against the Doctrine of Basic Structure and clipped wings of Council of Common Interest and the rest of constitutional bodies, however, failed to observe that Supreme Court like the rest of them is a creation of the Constitution and when decisions of the Supreme Court is in conflict with any clause therein present in the constitution either expressly or in spirit, it is the constitution that prevails.

We have experimented with different type of mentalities and political thought in the constituent assemblies, which resulted in their dissolution then with different constitutions in 1956, 1962 and finally a long standing yet frequently flirted with 1973 constitution. Military rulers bent down democratic principles to gun powder rule which got us not only into internal disturbances but wars that were alien to us which later kick backed and damaged us to the core. We cannot allow more constitutional traitors to usurp power directly or indirectly as per their political thought and approach. Whoever wants to rule the country must make-up his mind that Pakistan is to remain a democratic federal republic the rest can be made flexible as per changing time.

Living Constitutions is a term used for adaption of constitutional law with in-vogue circumstances of the country. It develops like any other living being keeping its basic structure intact. Changing the entire structure every time we face individual or partisan failures should be discouraged by all pillars of the state including free media instead of horse trading of the powerful keeping aside the larger interest of the public.

We have had enough trial and error in polity of Pakistan, and it is time we allow the current formation to mature, keeping the people in confidence rather than reproduce a sequel of incidents of 1971.

By:

Nouman Muhib Kakakhel, Partner KLA

The author is a human rights activist and a lawyer. He has studied Public Policy from University of Massachusetts and Corporate Law from Harvard University

Orignally Published in Daily Times on 12 May 2020