The author is a lawyer based in Islamabad.
A government that is running out of ability to generate new ideas has no choice but to repeat the old one and fail. We have seen the strange part about presidential systems. And now there is debate about canceling the 18th Amendment and how it has reduced Pakistan to a confederation.
Given Pakistan’s bitter history which broke up in 1971, the 18th Amendment is certainly the best thing that can happen to keep our federation sustainable. But it is difficult to sell for those who want to dress up an authoritarian unitary state as a federation.
Our constitution envisions a federation in 1973. But we continue to postpone its appearance for one reason or another. The reason is simple. Those who enjoy power in the center are reluctant to hand it over to the province (just as those who enjoy power in the province are also reluctant to hand it over to the regional government). Are there better alternatives for power devolution? After experimenting with power for centuries, there is a general consensus among thinkers that the best possibility to limit the abuse of power is to distribute it widely.
Our constitution envisions cooperative federalism. However, despite the 18th Amendment, we maintained a center that had grown too big and insisted on fattening it further. We have read constitutional provisions that require devolution of power at three levels of government: federal, provincial and local. Not only were the articles of the 1973 constitution deemed useless, but also new articles were introduced by the 18th Amendment. The centralist model is so rooted in the way we are that we don’t have the will or imagination to look beyond it.
The federal structure is about the distribution of responsibilities and also power and resources between levels of government. But we have worked with the idea that, while control must be maintained by the center, responsibility can be delegated to the province. Such a design cannot work. There has been no debate in Pakistan about the size of the federal government. We insist on maintaining an arrogant government at the center despite constitutional obligations to transfer responsibilities and resources to the provinces. A clear complaint then is that the center is bankrupt.
The constitution supports the disgusting idea of quotas from federal civil service for several years in the interest of affirmative action. First we continue to extend the timeline to end the quota system. At some point during the last decade the constitutional mandate for quotas ran out. But we still continue with the quota system which is now unconstitutional. Why? Because it is too difficult to imagine a government without a very strong central bureaucracy, even for judges who are required to interpret and uphold the constitution.
We need affirmative action in federal civil service because we refuse to allow the emergence of functional provincial services and incentives. Consider: the elite among the cadres of civil servants are the District Management and Police Group. Is DMG not a contradiction? Why do service centers need to improve, maintain and control services that run the district or manage law and order? The Constitution does not support central civil services at the expense of provincial services. But we have given the text an irrational meaning to maintain the bonds of control in Islamabad.
BISP does some great work. This helps the very poor to survive. But from a design perspective, is it the business of the federal government to distribute cash to those who should be handled at the level of the Union Council? Health is a provincial subject. If the Covid-19 crisis highlights one thing about our federation, is that a variety of ideas coming out of the provincial headquarters is a good thing. Sindh, which was widely vilified in terms of public health management, was at the forefront of providing leadership and ideas during this crisis. This is a good thing.
But apart from the 18th Amendment we have bent backwards to cancel its effect. Consider the Supreme Court jurisprudence over the past few years. The concurrent list was abolished but the SC somehow found concurrent legislative (and executive) authority for the center in the Constitution. In Sindh vs Nadeem Rizvi, a bench headed by CJP Saqib Nisar ordered the transfer of JPMC, NICVD and the National Children’s Health Institute from Sindh and the Sheikh Zayed Institute from Punjab to the center, based on hard-to-read reasons. .
Before this there was the case of Tiwana Imrana. Judge Mansoor Ali Shah while in the Lahore High Court breathed life into Article 140A while highlighting the obligation of the provincial government to create a functional and administrative regional government. Problems related to the seizure of local government functions by LDA and the bureaucracy that carries it out. This was canceled again by Hakim Saqib Nisar in SC. He decided that if parliament really wanted to create an autonomous regional government, the parliament should write down the details in the constitution.
Through another evaluation by CJP Nisar (PMDC vs. Muhammad Fahad Malik), the Joint Interest Council was castrated. The 1973 Constitution created the CCI as an important coordination platform for the center and the provinces. Since the legislature has done nothing to bring it to life, the executive has not taken steps to frame the rules and procedures to make it a meaningful forum and you can search for everything you like, but will not find a reasonable assessment that says its scope. authority. Article 154 which created the CCI is nothing but a death certificate.
But in the midst of Covid-19 we hear the detractors of the 18th amendment about the lack of coordination between the center and the provinces. What is stopping PTI from making CCI functional and useful? We have heard talk about local government that does not exist as an obstacle to public health management. What is stopping the ruling regime (also responsible for the three provinces) from leading by example and creating effective local government? Just like the APS tragedy that led to a military court, Covid-19 was seen as an opportunity to seek support from the 18th Amendment.
The real reason for the anxiety over the 18th Amendment is the fear that we are running out of choices to fund our security state. If there is, Covid-19 should impose introspection on our country’s priorities and use its resources. That should make us reconsider whether national security means citizen or state security and how to rationalize the size and function of the federal government. But in the land of saints, Covid-19 has the opposite effect. We want to multiply and allocate more resources to the security state.
Our security state cannot expand its tax base to mobilize more resources. It cannot fix trade deficits or maintain business confidence. And he refused to the right size and limited his footprint and therefore wanted the transfer of resources from the province to the center. Let’s assume the anti-18 Amendment club applies and is able to force or persuade political parties to rewrite the constitutional formula for the distribution of resources through NFC awards. How much longer does it take to buy our security state to continue its unsustainable mode of existence?
Blowing up fear of the enemy is one way to focus and maintain control to guard a tribe. But using fear, hatred, and polarization while using narratives of corruption or inefficiency or lack of patriotism in the provincial capital because fig leaves are not the best strategy for uniting diverse countries together. This is the least we have to learn from 1971.
If the center cannot produce resources to pursue its agenda and priorities, it may have to reorder its priorities instead of demanding that the federation unit fund its adventures.
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