A Clotted Federalism

A Clotted Federalism
Since the inception of Pakistan, the country has witnessed repeated tussles between advocates for a centralized system and the supporters of a decentralized federation. Historically speaking, this conflict, rooted within the country’s rich social and cultural diversity, has remained a major challenge to the national project and the political integrity of the country. Contentions over the shape of the federation have sparked protests, crackdowns, political squabbles, unrest and civil wars, with one resulting in the division of the country itself. Yet, despite the historical chaos that the country suffered under centralized rule, calls for revisiting the 18th amendment have been made to give unbridled power to certain leaders promising change.

Conventionally, Pakistan has remained a centralized federation, where the majority of state subjects remained in the hands of a strong federal government. More often than not, this led to grave tensions between the provinces and the center, especially regarding the unfair distribution of resources and repeated meddling of the federal government within provincial affairs. Despite the Constitution of Pakistan highlighting the federal nature of the state, the country remained in a unitary setup that took the illusion of a Federation, that only spoke of provincial autonomy, but had implemented safeguards that would make sure the center could take any action it wanted, absent any opposition from the province. This customarily has always resulted in an abuse of social, political and human rights.

The Superior Courts of Pakistan, unfortunately, continued the illusion and this was seen nowhere more blatantly than in the landmark Supreme Court judgment of Benazir Bhutto vs President Of Pakistan 1998 PLD 388 wherein the President of Pakistan, Farooq Leghari had dismissed the legitimate government of Benazir Bhutto in 1996. During the arguments, counsel for the petitioner argued that the dissolution of the National Assembly was wrong, and the federation had no authority to do the same for the provincial assemblies. It was a watershed moment for the Supreme Court to actually define the relationship between the center and the provinces but unfortunately, the courts were found wanting as they authorized and legitimized the dissolution save for one Justice Mehmood Mirza, who dissented and highlighted the constant interference from the center into provincial affairs, even going as far as to investigate the killings within provinces when the matter had already been taken by the province. This failure of legal interpretation exasperated the situation and is an example of the Superior Court’s failure to protect the sanctity of federalism within Pakistan. This sanctity was not preserved till the passage of the revolutionary 18th Amendment and the 7th National Finance Commission Award.

With the passage of the aforementioned, Pakistan actually started its journey towards becoming a proper Federation, however, this journey was wrought with bumps and blockages, as the center immediately started to interfere in provincial affairs. One of the most glaring observations to be made is that whilst the said Amendments were revolutionary, to constitute a proper federation required more legislation and proper Constitutional interpretation, but the result was the opposite.

In the absence of proper continuous legislation for the effective implementation of a true federation, the Pakistani Superior Courts have been forced to once again take the limelight.

One such example was when the federal government passed a notification regarding the Employees Old Age Benefits Trust Committee and reconstituted the commission when the subject of labor was no longer a federal domain, but a provincial concern. The federal government stated that since Article 270A states that till the province has made relevant law, the federal law pre-18th Amendment shall remain thus, the center was empowered to interfere. The Lahore High Court adjudged in its Judgment of 2013 PLC 143 that the center could no longer interfere in provincial affairs, and they could not utilize old laws as bridges to weaken provincial autonomy. This legal tussle has continued to this day in one shape or another, especially wherein it is stated that upon any subject that both parties could legislate upon, federal law shall prevail. We witnessed the same tussle when the Punjab Governor became recalcitrant in the March 2023 crisis.

In the absence of proper continuous legislation for the effective implementation of a true federation, the Pakistani Superior Courts have been forced to once again take the limelight. This has caused frustration as differing opinions and contrary judgments regarding the power of the center to interfere with provincial affairs have only complicated the relationship between the two entities. This was witnessed in the famous case Government of Sindh vs Dr. Nadeem Rizvi 2020 SCMR 1, wherein during the hearings the then Chief Justice Saqib Nisar, repeatedly asked the petitioner as to why this extremely important subject of ownership of pre-18th Amendment federal institutions within provincial domains was not discussed and legislated upon within the Parliament. This was a revelation regarding the ineptness of the legislature when it came to expanding, defining and legislating upon the center-province relationship. The majority view of 4-1 held that federal institutions which remain under the control of the center are legitimate and cannot be transferred to the provincial domain. Since the said institution was home to medical research and training, therefore, its status was different. Justice Baqar dissented and held that hospitals always remained a provincial subject and the transfer of an institution based on this reasoning would deter the province from funding or forming institutions that do the same, lest they fear a federal takeover of said institutions. Putting aside the merits of the judgments, both the majority and minority views made good points, but these points needed to be made in the parliament, so that proper legislation could be enacted. Yet, nothing of this sort was ever discussed within the parliament.
Unfortunately, rather than addressing the serious legislative, administrative and financial difficulties regarding provincial autonomy and center-province relations, the central state continuously plays petty politics.

The lack of legislative work by the center has not only impacted the aforementioned issues, but also promises to further exacerbate the financial relationship between the two parties. The Federation is required to provide the provinces with a share of the Federal Consolidated Funds, and this transfer has been based on metrics largely dependent on population, which amounts to 82% of the metric. This has not been well received, and has not been revisited since. Putting aside the concern of the center repeatedly stating that it has to relinquish nearly 57% of the funds to the provinces, the provinces are also dissatisfied as the population metric witnessed large provinces like Punjab gain a lion’s share of the Fund, meanwhile smaller provinces like Khyber Pakhtunkhwa and Baluchistan were allocated only a third and sixth of the Fund allocated for Punjab, even though KPK has repeatedly allocated twice the amount Punjab has allocated for development. There is no doubt that the NFC needs to be revisited so that other metrics like poverty, which are crucial for KPK especially post-merger of FATA, revenue collection, which are crucial for KPK and Sindh, and inverse population, crucial for Baluchistan, are expanded.

Unfortunately, rather than addressing the serious legislative, administrative and financial difficulties regarding provincial autonomy and center-province relations, the central state continuously plays petty politics, as it engineered a massive financial crisis within KPK by withholding over 60 billion rupees in Net Hydel Profit’s account, despite the fact that this ought to have been decided under the agreement of resource sharing between the center and provinces. This crisis intensified when the center only released half of the budget allocated for the development of the tribal areas. This tussle between KPK and the center regarding funding shows how the federation is still not properly devolved, as the center can still penalize a province for political reasoning.

Furthermore, the country has not even begun to discuss the relationship between the territories of Azad Kashmir and Gilgit Baltistan with the center, as the former is being administered like a pre-18th Amendment province and the latter as a territory directly under federal control.

Although federalism and autonomy was the main theme behind the creation of Pakistan, and there is legal evidence that Jinnah preferred a federal Pakistan absent the heavy hand of the center, it has not been properly implemented.

With the legitimate demands of the provinces, the glaring loopholes within the legal structure and the structured administration on the brink of chaos, there is no doubt that the Center needs to set aside the unfounded fears of separatism and look to legislate further so that provincial autonomy can evolve and the whip of the center can finally be relegated to the pages of history. It would do well for the center to remember that the East Wing did not separate because it was given provincial autonomy, but due to the failure of the center to address genuine grievances regarding the centralization of power.

The writer is a jurist, historian and an animal rights activist.