Introduction the Story of Federalism in Pakistan

Federalism is derived from Latin word foedus, meaning “treaty, pact or covenant”. Federalism is a system of government where sovereignty is shared (at equal peculiarity) between a central government and its federating units (Adeney, 2007, p. 6). The nations with heterogeneous population and multi-ethnic societies tend to adopt the federal form of government. As it devises a better mechanism of division of power among different self-governing entities to successfully satisfy the specific needs of a particular society. As Dicey, an acknowledged constitutional scholar, defined federalism as ‘a political contrivance intended to reconcile national unity and power with maintenance of state rights’.

According this formula of governance, the people of a specific country follow two sets of laws; the federal and provincial. The federal laws tend to keep a homogeneous and inter-connected body polity while the state laws focus on the local issues of public with authority to resolve them. There are, today, at least 28 countries which practice federal form of government.

The federal system ranges from highly centralized federations to highly autonomous regional states. Federalism assures, in modern system of representative democracy, that the rights of minorities are not washed away. It envisages a devolution of power mechanism which entrusts more autonomy to its states. Due to these merits of federalism it is gaining more acceptability in regions with divided polity and multi-cultural and multi-ethnic societies.

Evolutionary history of Federalism in Pakistan

Pakistan’s federalism has deep roots in its history. Ranging as far back as the Vedic Age, history has witnessed diverse systems of government in the Indian Subcontinent, dating back to the Vedic Age. Despite being under monarchial rule throughout its history, the subcontinent retained the flavour of regional autonomy in its system of governance.

Mughal rule, under The Great Akbar, saw the empowerment of provincial governments and effective devolution of some necessary powers to Nazims (governors) of provinces. Before the advent of British imperialism the Mughal system of government proved to be very effective and beneficial for India. The story of federalism in subcontinent and especially in Pakistan finds its roots in the imperial history of subcontinent under the British imperialism with highly centralized power resulted in high demand of sovereignty to states and later that demand for sovereignty turned into freedom movement.

Colonial Period  Story of Federalism in Pakistan

The British era adopted the policy of highly centralized governance with all the powers to the viceroy and no effective powers for legislative councils. The documents important in colonial history of subcontinent are Indian Councils Act 1861, Indian Councils Act 1892, Indian Councils Act 1909 (Morley-Minto reforms), Government of India Act 1919(Montagu–Chelmsford Reforms) and Government of India Act 1935. The Acts of 1861 and 1892 the act did little to improve the influence of Indians in the legislative council. The council could only provide advice and could not engage in financial discussions. The Morley-Minto reforms did allow Indians to elect their representatives and increase their seats, but still, the power was highly centralized with no regional autonomy for states.

Montagu–Chelmsford Reforms:

Until 1919, before Montagu–Chelmsford Reforms, the Indian political advice was limited to advisory functions only. The 1919 Act allowed a limited self-rule and concept of federalism gained roots for the first time. The important reform in the federal structure were:

• Bicameral Legislature was set up in the center. The upper house, called as Council of States, had 60 members, while lower house or Central Legislative Assembly had 146 members.
• Powers were distributed between center and provinces.

Center had Foreign affairs, Defense, Railways, Currency, Tariffs and Customs, Posts and Telegraphs, Patents and Copyrights, Commerce and Shipping, Civil and Criminal Law and Procedure, Major Courts, Quarantine and Telecommunications under its domain.

Education, health, irrigation, law and order, administration, land revenue, police and jail, justice, and local government all fell under the provinces’ jurisdiction. The introduction of diarchy in the provinces ultimately undermined their powers and limited the federalism that had developed under the Act. This system divided provincial matters into domains.

Indian Members in charge of the Council received the “transferred subjects” of health, commerce, and education. The provincial governors and their nominated councils directly controlled the “reserved subjects” (law and order, finance, police, irrigation, and forests).

Government of India Act 1935:

On twenty fourth July, 1935 the authorities of India Act 1935 was exceeded through the British parliament. A number of the essential capabilities of Federalism envisaged in the Act had been:

• For the first-time India was proclaimed as “Federation of India” under Section 5 of the Act. Federation of India consisted of 11 Governor Provinces, 6 Chief Commissioner Provinces and the states willing to join.
• Abolished the diarchy and restored provincial autonomy.
• The Act provided three lists of subjects the Federal, the Provincial and the Concurrent Legislative Lists.

Federal Legislative List

Under Section 100(1) of the Act the Federation is empowered to pass laws related to the matters enumerated in the Federal legislative list in the 7^th schedule. There were 59 items mentioned in the Federal Legislative List.

These matters included: Defense, Posts and Telegraph, Labor exchanges, Census, Immigration, Currency, Public debt of the Federation, Federal Public Services, Federal agencies, Federal railways, Maritime shipping and navigation, Major ports, Carriage of passengers and goods by sea or by air, Copyright, Arms; firearms; ammunition, Explosives, Petroleum and other liquids, Corporations, Development of industries, extension of the powers and jurisdiction of members of police force, Duties of customs, Corporation tax, Salt, State lotteries, Naturalization, Establishment of standards of weight, Jurisdiction and powers of all courts, Taxes on income other than agricultural income, Taxes on the capital value of the assets, Terminal taxes on goods or passengers carried by railway or air, The rates of stamp duty in respect of bills of exchange, Duties in respect of succession to property other than agricultural land, and Taxes on the capital value of the assets.

Provincial Legislative List

Under Section 100(3) of the Act the Provinces are entrusted with the following 54 matters enumerated in the Provincial Legislative List. Few important matters entrusted upon provinces are: Public order, Police including railway and village police, Prisons, Public debt of the Province, Provincial Public Services, Compulsory acquisition of land, Local government, Public health and sanitation ; hospitals and dispensaries, Education, Communications, Water, Agriculture, Forests, Regulation of mines and oilfields and mineral developments, Fisheries, Protection of wild birds and wild animals, Gas and gasworks, Trade and commerce within the Province, Intoxicating liquors and narcotic drugs, Unemployment, Charities and charitable institutions, Land revenue, Capitation taxes, Taxes on professions, Taxes on animals and boats, Taxes on the sale of goods and on advertisements, Taxes on luxuries, Rates of stamp duty, Tolls, and Dues on passengers and goods carried on inland water- ways.

Concurrent Legislative List

Section 100(2) empowers both provinces and the Federation to legislate on the 36 matters enumerated under the concurrent list in the 7th Schedule. The Act operates Part I of this list normally under Sections 100 and 104, while Section 126(2) empowers the Federation to direct the provinces to implement the laws enacted under Part II of the Concurrent Legislative List.

Part I had following important matters under it: Criminal law, Criminal Procedure, Removal of prisoners and accused, Civil Procedure, Evidence and oaths, Marriage and divorce, Wills, intestacy, and succession, Transfer of property other than agricultural land, Trusts and Trustees, Contracts, Arbitration, Bankruptcy and insolvency, Stamp duties, Actionable wrongs, Newspapers, books and printing presses, Lunacy and mental deficiency, Poisons and dangerous drugs, Mechanically propelled vehicles, Boilers, Prevention of cruelty to animals, and Factories.

Part II had following matters: Shipping and navigation on inland waterways, Welfare of labor, Unemployment insurance, Trade unions, Electricity, the sanctioning of cinematograph films for exhibition, and Persons subjected to preventive detention under Federal authority. The above division of powers shows that the 1935 Act was great leap forward in the evolution of Federalism in the subcontinent. The Britishers devised this mechanism of devolution of powers in order to redress the growing demand of autonomy of the Indians.

Some other important features of Federalism under 1935 Act were:

• Federation to legislate for two or more provinces if they wished so under Article 103
• Establishment of Inter-Provincial Council under Section 135 to resolve disputes between provinces or between the Federation and Provinces.
• Section 136 distinguishes between “revenue of Federation” and “revenue of Provinces” as all the money raised by Federation and all the raised by provinces respectively.
• Section 137, 138,140 and 140A devise a way to distribute the tax revenues on stamp duties, fares, freight, income, salt duties, excise duties, export duets and sale of goods.
• Section 163 illustrates the burrowing of Provinces upon the security of the revenue of the Province.

Government of India Act devised, after at great length, the federal character of the State of India. But still the Act was not up to the expectation of the people of subcontinent as it still usurped their power to self-rule. Manto has rightly explained the expectations of the Indian people after the adoption of 1935 Act in his famous short story “The New Constitution”. Britishers did give autonomy to the Provinces but still the all-powerful Governors and Governor General usurped the powers of Provinces. The federal mechanism had more authority tilt towards the center rather than provinces. Though Federating units were given a share in the governance yet the real power vested in the center. It was a quasi-federal Act and needed a scheme of federalism with clearly demarcated powers and preservation of unity of subcontinent along with the autonomy of federating units.

Making of Federal-Political Thought

The founding fathers of the country and All India Muslim League that steered the formation of Pakistan always campaigned the demand for the provincial autonomy during the pre-independence era. Historically, these demands made a great public sensation of autonomy to the provinces, which even after the formation of Pakistan continued to haunt the proponents of unitary form of government. Though the demand for self-rule and provincial autonomy echoed throughout the British rule in Subcontinent. But the concern for present discussion is the role of Muslim League and its leaders in making of Federal-Political thought among the body politic of Pakistan. The important events and promises for provincial autonomy include the 1916 Lucknow Pact, 14 points of Quaid-e-Azam in 1929, Khutba Allahabad of Allama Iqbal, 1940 Resolution of Pakistan and Objectives Resolution. Jinnah and Muslim League always campaigned the cause of provincial autonomy and dared to criticize vehemently the powerful center.

Lucknow Pact

In 1916 the Congress and Muslim League signed a “Hindu-Muslim unity Accord” which earned for Jinnah the title “Ambassador of Hindu-Muslim unity”. The pact focused mostly on the unity of Indians and collective pressure on Britishers to ensure the sovereignty of India and its people. But a rather uncelebrated and important proposal in this pact was the demand for provincial autonomy. The pact states, “Provincial autonomy will be given to the Provinces with maximum powers vested in the Provincial Councils”.

14 Points of Jinnah  Story of Federalism in Pakistan

Jinnah in 1929 as a response to the Nehru report put forth his famous 14 points as a constitutional reform plan to safeguard the rights of Muslims in future constitution of India. The three important points in these 14 points, which highlighted the worth of federalism for future constitution are:

• The form of the future constitution should be federal, with the residuary powers vested in the provinces;
• All provinces shall receive a uniform measure of autonomy;
• The Central Legislature may not alter the constitution without the state’s contribution to the Indian Federation’s approval.

A bare perusal of these above-mentioned points shows that the Father of Nation had always envisaged the federal form of government with more and uniform provincial autonomy. In November 1945 Quaid-e-Azam Muhammad Ali Jinnah once again iterated the need of Federalism in the future Muslim state (Pakistan) in following words:

“The theory of Pakistan guarantees that federal units of the National Government would have all the autonomy that you will find in the constitution of the United States of America, Canada and Australia. But certain vital powers will remain vested in the Central Government such as monetary system, national defense and federal responsibilities”

Khutbah Allahabad

In this famous address to Muslim League workers at 25th annual session of the All-India Muslim League, at Allahabad, Allama Iqbal envisaged the idea of “a Muslim India within India”. While addressing the workers, he said: “Self-government within the British Empire, or without the British Empire, the formation of a consolidated North-West Indian Muslim State appears to me to be the final destiny of the Muslims, at least of North-West India”. Iqbal’s demand of self-government within or without British Empire echoes the sentiments of Muslims of that era to have autonomous self-governing state functionaries to safeguard their rights. Resultantly, after 17 years Pakistan appeared as a self-governing state for Muslims.

1940 Resolution of Pakistan

This famous resolution was passed by All-India Muslim League on the occasion of its three-day general session in Lahore on 22–24 March 1940. The resolution on one hand rejected the idea of united India and demanded a separate state for Muslims, but on the other hand it also conceived the idea of independent and autonomous eastern and western states. The resolution stated as:

The demarcation of geographically contiguous units into regions necessitates necessary territorial readjustments. These regions, such as the North Western and Eastern Zones of (British) India, where Muslims hold a numerical majority, should form ‘independent states’ with autonomous and sovereign constituent units. The future Muslim state’s demand for autonomous and sovereign constituent units echoes the idea of strong federalism.

Objectives Resolution

Objectives Resolution is hailed as the Magna Carta of Pakistan. This resolution proclaimed few principles for the future constitution of Pakistan. Since then it has been heralded as the foundational stone in the constitutional history of Pakistan. This resolution also envisaged the federal form of government in Pakistan with autonomous constituent units. It stated as:

“Pakistan shall be a federation and its constituent units will be autonomous.”

Having all these events and documents in mind one can easily infer that the founding fathers of this nation always wished and visualized the federal form of government in Pakistan with autonomous provinces.

Similarly, the way the Muslim majority provinces were given the right to retain with un-divided India or join to form a separate state suggests that it was the federating units which decided to form the federation of Pakistan same like United States. Princely states of that time were also given the right to join either India or Pakistan or remain independent. The forefathers of the country did ideate the federal state and later the scheme of formation of Pakistan also echoed the same. So, till now the study of pre-independence history of Pakistan suggests that it was destined to become a federal state with autonomous provincial governments.

Post-Independence History

The first document after the independence was Objective Resolution and as discussed earlier it fanaticized the federal form of government with autonomy to the provinces. But, as time passed the constitutional crises led to the usurpation of power by the center and several provincial governments were toppled.

• Dismissal of Dr. Khan Shaib Ministry Govt. of NWFP on 22 August, 1947 under section 51(5) of interim constitution Govt. of India Act 1935.
• Dismissal of M.A. Khuhro Ministry Govt. of Sindh on April 20, 1948 (under section 51(5)) of interim constitution Govt. of India Act 1935.
• Dismissal of Mr. Mamdoth Govt. of Punjab on Jan 25, 1949 (under section 92-A) of interim constitution and Governor rule proclaimed.
• Dismissal of Mr. Fazal-ul-Haq in 1954 in East Pakistan (under section 92-A)

The dismissals of successive provincial and constitutional assemblies during the first decade of the infant country aggravated the constitution. In 1953, Prime Minister Muhammad Ali Bogra proposed a new Bogra formula attempted to establish a federal state and address crises by proposing that the Federal Legislature would consist of two houses: the House of Units and the House of People. le. The House of Units, as an upper house, had 50 seats with equal representation from all 5 provinces. Furthermore, in the lower house, representation was based on population, with 300 sea Unfortunately, the assembly disbanded before it could implement this concept, which neutralized the tension between East and West Pakistan.

1956 constitution  Story of Federalism in Pakistan

Passed on 23^rd March, 1956, this was the first ever constitution of the country adopted 9 years after its independence. Article 1 of this constitution declared Pakistan as federal republic.

Main features of this constitution related to federalism are:

• The introduction of a single unit formula led to the division of Pakistan into two provinces: East and West Pakistan.
• Article 43 introduced the unicameral legislature, dividing its 300 members equally between East and West Pakistan. President was also part of Parliament.
• Provincial Assembly consisted of Governor and one House with 300 seats each (Article 76 and 77)
• Article 118 establishes National Finance Commission to make recommendations to the President regarding distribution of financial resources between Federation and Provinces.
• Article 199 establishes National Economic Council to overview the economic conditions of the country.
• Article 119 limited the authority of provinces to make laws on inter-provincial trade.
• In Article 129 mechanism for dispute resolution is envisaged between Provinces or Provinces and Federation. It states that when dispute is of nature which is not under the jurisdiction of the Supreme Court then the Chief Justice can appoint a tribunal to dissolve it.
• Article 106 designates three Legislative lists: the Federal List, the Concurrent List and the Provincial List with residuary powers. The Federal List in 5^th schedule had 30 items, the Concurrent List had 19 items and Provincial List had 93 items.

The Federation controlled matters such as Defense, Citizenship, Censor, Ports, Minerals and Oil, Currency and Federal Public Service Commission under Federal List and matters such as Criminal and Civil Law, Scientific research, Printing Press, Price Control, and Economic Social Planning under Concurrent List. Provinces were responsible for all other matters, such as law and order, railways, education, health, electricity, factories, industries, Zakat, and so on.

More Features of the 1956 Constitution

Apparently the 1956 constitution was a great leap forward towards a true Federal State with maximum autonomy to the provinces. But, this autonomy was undermined by the provisions of constitution itself as;

• The introduction of one unit usurped the identities of smaller provinces in West Pakistan, such as NWFP, Sindh, and Balochistan (which was a part of NWFP until 1970).
• Article 92 of the constitution declares that no bill or amendment making provision for any matter specified in a money bill or that would involve expenditure from the revenues of the province shall be introduced or moved in a Provincial Assembly except on the recommendations of the Governor. This is a clear infringement on the powers of the Provincial Assembly.
• Despite the declaration of electricity as a provincial subject, a discrepancy exists because Article 113 of the Constitution states that the Provincial Legislature cannot impose a tax on the electricity it consumes.
• Emergency powers given to the President and Parliament also overruled the sovereignty of Provinces as they had no say in case of declaration of Emergency.

Although this constitution tried to cater all the demographic, ethnic, fiscal and linguistic challenges yet the power structure tilted towards the center.

1962 Constitution

Unfortunately, Ayub Khan’s imposition of martial law in 1958 prevented the 1956 Constitution from flourishing, leading to its abandonment. The apex court validated the martial law, replacing the old constitution with a new legal order. Under the guise of the presidential system, Ayub Khan introduced a new constitution that attempted to conceal the dictatorship.

This Constitution, like the 1956 Constitution, was based on the One Unit formula, with complete parity between both regions. The Constitution retained the unicameral legislature and the all-powerful president to oversee the Parliament and provincial assemblies. Without specific provisions for provincial representation, the National Finance Commission (Art. 144) and the National Economic Commission (Art. 145) remained in place. Article 131 empowered the Central Legislature to legislate on matters enumerated in the 3rd schedule, unlike the 1956 Constitution. Article 132 vested all residuary powers in provincial legislatures. The 3rd schedule’s list included 49 items, but counting the sub-items increased the total to 93.

Some More Features

Unfortunately, Ayub Khan’s imposition of martial law in 1958 prevented the 1956 Constitution from flourishing, leading to its abandonment. The apex court validated the martial law, replacing the old constitution with a new legal order. Ayub Khan introduced a new constitution that attempted to conceal the dictatorship.

Article 74 curtailed provincial independence by placing restrictions on the Provincial Assembly. “In case of conflict between the Governor and Assembly of the Province, if the National Assembly has decided in favor of the Governor, he or she can, with the consent of the President, dissolve the assembly,” the article stated. This clearly placed an embargo on the powers of an elected provincial assembly, granted by an unelected governor. The president nominated the governors and bestowed upon them immense powers. Since the President held all the power in the central government, he attempted to replicate this power in the provinces by establishing impotent provincial legislatures, similar to those in the Center.

The President’s dictatorship shattered the fundamental principles of federalism, ultimately leading to Yahya Khan’s removal of Ayub Khan from office. Once again, Yahya Khan imposed martial law on the country, leading to the tragic events in East Pakistan. There are multiple analyses on the downfall of Dhaka but regarding the federalism and its utility, it was lack of federal design of the constitutions which carved out one of the solid reason of the East Pakistan debacle.

1973 Constitution

The fall of East Pakistan was fresh in minds of the framers of this Constitution. Therefore, compromises led to the 1973 Constitution while East Pakistan’s wounds were still open and Balochistan’s wave of independence was just beginning to fade. The primary features of the 1973 Constitution are:

• • Article 1 declares Pakistan a Federal Republic.
  • Under Art. 50, the National Assembly (House of Representatives) and Senate (House of Federation) formed the bicameral legislature.
  • The Senate had equal representation from provinces, as well as representatives from FATA and the Federal Capital (Art. 59).
  • The president or governor no longer has the power to dissolve provincial or central assemblies at their whim.
  • This constitution discusses federalism in two parts: Part V addresses legislative and executive federalism, and Part VI addresses fiscal federalism.

• Legislative Federalism: Part V of this constitution discusses the relation between Federation and Provinces. This Part ranges from Article 141-159. It is further dissected into 3 chapters.

 Distribution of Legislative Powers

This chapter distributes the legislative powers between Federation and Provinces under Article 142. This Article envisages two Legislative Lists in Federal Schedule as Federal Legislative List and Concurrent Legislative List. Federation can legislate exclusively on matters in Federal List, while both Provinces and Federation can legislate on matters in the Concurrent List with Federation to override Province in case of inconsistency. All residuary powers are rested with Provinces under this chapter. Parliament can legislate for two or more Provinces on matters not enumerated in either of lists upon the wish of Provinces.

Federal Legislative List

This List consisted of two Parts, Part I contained 59 items and Part II contained 8 items. Matters in Part I are under the exclusive domain of Federal Government while those under Part II are regulated Under Article 153, which will be discussed later. Important matters in Part I are:

The defense of the Federation, External affairs, Nationality, Migration, Posts and telegraphs, Currency, Foreign exchange, Public debt of the Federation, Federal Public Services, Administrative Courts and Tribunals for Federal subjects, Education as respects Pakistani students in foreign countries and foreign students in Pakistan, Nuclear energy, including, Maritime shipping and navigation, Aircraft and air navigation,  Carriage of passengers and goods by sea or by air, Copyright, Opium, Import and export across customs frontiers as deemed by the Federal Government, inter-provincial trade and commerce, trade and commerce with foreign countries, State Bank of Pakistan.

The law of insurance, Stock exchanges, Corporations, International treaties, conventions and agreements and International arbitration, National highways and strategic roads, Federal surveys, Fishing and fisheries beyond territorial waters, Establishment of standards of weights and measures, Duties of customs, Duties of exercise, Taxes on income other than agricultural income, on corporations, on the sales and purchases of goods, on the capital value of the assets, on mineral oil, natural gas, and terminal taxes on goods or passengers carried by railway, sea or air; taxes on their fares and freights.

While the Part II following 8 items:

Railways, Mineral oil and natural gas, Development of industries, Council of Common Interests, Fees in respect of any of the matters in this part, Offences against laws with respect to any of the matters in this Part, Inquiries and statistics for the purposes of any of the matters in this Part, and matters incidental or ancillary to any matter enumerated in this Part.

Concurrent List Story of Federalism in Pakistan

Concurrent List contained 47 matters on which both the Federations and Provinces were empowered to legislate. These 47 matters were:

Criminal law, Criminal procedure, Civil procedure, Evidence and oath, Marriage and divorce, Wills, intestacy and succession, Bankruptcy and insolvency, Arbitration, Contracts, Trust and trustees, transfer of property, registration of deeds and documents, Actionable wrongs, Removal of prisoners and accused persons from one Province to another Province, Preventive detention for reasons connected with the maintenance of public order, Arms, fire-arms and ammunition, Explosives, Drugs and medicines, Poisons and dangerous drugs, Environmental pollution, Population planning and social welfare, Welfare of labor, Trade unions, Boilers, Unemployment insurance, Mechanically propelled vehicles, Electricity, printing presses, Curriculum, syllabus, planning, and standards of education, Islamic education, censorship, Tourism, Legal, medical and other professions, Zakat, and Auqaf.

The division of Legislative powers in 1973 Constitution didn’t embark the idea of Federalism which it could have after going through the bitter experience of Center dominancy in past 26 years.

Administrative relations between Federation and Provinces

The Articles from 145-149 address the nature of administrative nature between Center and Provinces. These articles deal with the power of President to direct the Governor to perform certain functions on his behalf in areas included in federation, right of Federation to confer powers on Provinces, and to directions given by Federation to Provinces in certain cases.

Article 151 in this chapter extensively deals with the regulation of inter-provincial trade and is commonly called as the ‘Commerce Clause’ of Pakistan. It restrains the Provinces to exercise any legislative or executive action which prohibits or restricts the import or export of goods from one Province to another. Moreover, it also debars Provinces to impose unreasonable tax on the goods manufactured in one Province as against similar goods produced outside that Province.

Article 152-159

These articles deal Council of Common Interest, Water supply, National Economic Council, Electricity, Natural Gas and Broadcasting.

Council of Common Interest

The President institutes the Council of Common Interests under Articles 153 and 154 of the Constitution. It consisted of a prime minister and four chief ministers. The Council had the power to take care of disputes between provinces and between the center and the province. It also monitored the eight matters enumerated in the Federal Legislative List, Part II.

Article 155 empowered it to resolve disputes over water distribution, while Article 157 empowered it to address the issue of electricity (item 34 of the Concurrent List). If they disagree with the CCI’s decision, any province or federation can appeal to Parliament’s joint sitting, which will rule final. The CCI was powerful in theory but weak in practice. The meetings of CCI were few and far between, making it an ineffective body.

National Economic Council

Under Article 156 President constitutes the NEC. It consisted of Prime Minister any other member as the President deemed fit. Its function is to overview the overall Economic situation of the country and advice the Federal and Provincial Governments to seek balanced development and regional equity.

Priority of Natural Gas

According to Article 158, the province with a discovered gas wellhead will take precedence over others.

Broadcasting

Article 159 stipulates that the Federal Government shall not unreasonably take control over broadcasting from a Provincial Government.

Fiscal Federalism

Part VI of the Constitution envisages fiscal federalism as it deals with the distribution of revenues between the Federation and the Provinces. The main subjects of this chapter are National Finance Commission, Natural gas and hydroelectric power, Bills affecting taxation, Borrowing, and Ownership of ownerless property.

National Finance Commission

Article 160 commands President to constitute NFC consisting of Ministers of Finance from Federation and Provinces and any other person appointed by President. The purpose of the Commission is to make recommendations to the President of following grounds:

The distribution between the Federation and the Provinces of the net proceeds of the following taxes:

1. Taxes on income, including corporation tax but not including taxes on income consisting of remuneration paid out of the Federal Consolidated Fund;
2. Taxes on the sales and purchases of goods imported, exported, produced, manufactured or consumed;
3. Export duties on cotton, and such other export duties as may be specified by the President;
4. Such duties of excise as may be specified by the President;
5. Such other taxes as may be specified by the President.

• The making of grants-in-aid by the Federal Government to the Provincial Governments;
• The exercise by the Federal Government and the Provincial Governments of the borrowing powers conferred by the Constitution; and
• Any other matter relating to finance referred to the Commission by the President.

After receiving such recommendations, the President by Order shall promulgate the suggestions so made. Both Houses of Parliament and Provincial Assemblies will receive the NFC’s recommendation and an accompanying memorandum.

History of the NFC Awards

Since the 1935 India Act and the Raisman formula of 1947, the military governments have issued several awards to streamline the share of the divisible pool of tax receipts, essentially based on population. Military governments issued awards in 1961 and 1964 under Ayub, 1979 and 1985 under Zia, and 2000 and 2006 under Musharraf, but they failed to develop a consensus among provinces, leading to a deadlock.

But, the 1974 Award under Z. A. Bhutto and the 1991 and 1996 Awards under Nawaz Sharif were based on consensus. The latter increased the share of provinces from 28% to 45% of the federal tax revenue. Among provinces, Punjab got 57.88%, Sindh 23.28%, NWFP 13.54% and Balochistan 5.30%.

In 2006, after NFC failed to reach a consensus, Musharraf declared the provincial share at 45%, with 1% increase per annum up to 50% 5 years. A major breakthrough came in 2009, when the NFC Award increased the provincial share the divisible pool from 47% to 56% for 2010-11 and to 57.5% for the following four years. The new criteria for the Award included: population 82%, poverty 10.30%, revenue generation 5% and inverse population density 2.7%. The Award changed the ratio of distribution of resources to provinces: Punjab 51.74%, Sindh 24.55%, NWFP 14.62% and Balochistan 9.09%. By far, this has been the most progressive step in the direction of fiscal federalism. It decreased the share of Punjab, almost doubled the share of Balochistan and expanded the criteria for the NFC Award.

Natural Gas and Hydroelectric power

Article 161 outlines the federal excise duty on natural gas and mandates that the federal government pay any net profits from hydroelectric stations to the province in which they are located.

Bills affecting taxation are of interest to the provinces.

Art. 162 prohibits the introduction of such a bill or amendment in Parliament without the President’s prior approval.

Provincial taxes on professions

Under Art. 163, Provincial Assemblies have the authority to impose taxes on professions, trades, or employment, which are not considered income taxes.

Burrowing of Provinces

Article 167 provides that the Provinces can extend their executive authority to burrow upon the security of the Provincial Consolidated as prescribed by the Act of Provincial Assembly. The Federal Government can also make loans and give guarantees in respect of the loans raised by the provinces.

Ownership of ownerless property

Any such property if in the Province shall be the property of Province and if at any other place then it shall vest in Federal Government. Article 172(2) states that, all lands, minerals and other things of value within the continental shelf or underlying the ocean within the territorial waters of Pakistan shall vest in the Federal Government.

When the country imposed Martial Law on July 5, 1977, the Constitution of 1973, which extensively elaborated the concept of Federalism in Pakistan and attempted to create a participatory form of Federalism, fell short of its goal. General Zia, who later became President Zia, stripped off the federal character of the Constitution by passing the 8^th Amendment, which changed the parliamentary form of government into a quasi-presidential form.

Art. 58(2)(b) and 112(2)(B) respectively gave the president and governors the authority to dissolve national and provincial assemblies. The power returned to the people after Zia’s demise, but the 8^th Amendment continued to haunt the democratic setup in the county. Despite the 13th Amendment’s attempts to restore the Constitution to its original form, the country once again imposed martial law in October 1999. The 17^th amendment introduced by President Musharraf again changed the Constitution into a quasi-presidential form with President the sole power holder.

As the great Chilean poet Pablo Nerunda said: “You can cut all flowers, but you can’t keep spring from coming”. So is the case with dictators, they can usurp the power of people but they can’t keep the spring from coming. In 2006, the two largest parties of Pakistan, PMLN and PPP, signed a Charter of Democracy to restore the Constitution of 1973 in its true spirit.

18^th Amendment – Federalism strengthened:

18^th amendment was the outcome of the frustration of the politicians under dictatorship and struggle of the people for regional autonomy. This amendment amended almost 101 Articles of the Constitution. It was the return of spring which Pablo Nerunda has talked of in his couplet. Major impacts of this amendment are discussed below.

Concurrent Legislative List abolished:

• We abolished the concurrent list, shifted one item, boiler (no. 29), to Federal Legislative List I, and moved two items, electricity and legal, medical, and other professions, to Federal Legislative List II. We transferred the items from Federal Legislative Part-I to Part-II.

• Major ports
• National planning and national economic coordination including planning and coordination of scientific and technological research
• Census
• Extension of the powers and jurisdiction of members of a police force belonging to any Province to any area in another Province.

The Federal Legislative Part-II now includes the following new topics:

• Standards in institutions for higher education and research, scientific and technical institutions
• Inter-provincial matters and co-ordination
• Supervision and management of public debt
• All regulatory authorities established under a Federal law.

Five items were deleted from the Federal List-I and given to provinces. These are:

• State lotteries
• Duties regarding succession of property
• Estate duty in respect of property
• Capital gains
• General sales tax on services

We added a new provision to Article 142, making criminal law, criminal procedure, and evidence a joint subject of the provincial and federal legislatures. The amendment to Article 105(1) mandates that the governor must request a reconsideration of the CM’s advice within 15 days and subsequently accept it within 10 days. Similarly, Art. 116 prevented the Governor from withholding assent after reconsideration by requiring him to give assent within 10 days or risk having it deemed given. Furthermore, the addition of Art. 140(a) allowed provinces to establish local government systems.

The 18th Amendment transferred all major items on the concurrent list to the provinces, enhancing their autonomy and enabling them to address local issues more effectively. The Federation transferred almost 17 ministries to the provinces. The important subjects transferred to provinces include: Civil laws, Curriculum and policies for education, Environmental control, Labor laws, Population planning and social welfare, Zakat and Auqaf, Drugs and medicine, Arms and ammunitions. This devolution of power is unique in country’s history and has moved the federal principle of country from a strong federalism to participatory federalism.

Some other amendments related to the Federalism in 18^th amendment are:

Empowerment of Senate

• The 18th amendment granted the Senate equal powers and functions as the National Assembly. The following amendments were made to achieve this:
• We have extended Money Bill’s recommendation time to 7–14 days.
• Art. 89 prohibits the passing of ordinances when the Senate is in session. Previously, the Senate could only pass Ordinances when NA was not in session.
• Under Art., the Senate and NA both hold the Cabinet responsible.
• Parliamentary committees include Senate members to appoint judges and Election Commission members.
• Both houses must receive a proclamation of emergency. Earlier, the majority of NA undermined the Senate’s mandate in a joint session.
• The Senate should receive reports from the CCI, NEC, Principles of Policy, and Auditor General.

CCI strengthened

• Council of Common Interest was an ineffective body before 18^th It hardly met much and discussed any issue. But after the 18^th amendment it has been made more effective by;
• Subject matters under Federal List-II have been increased from 8 to 18,
• adding three more members on the will of Prime Minister,
• fixing a time of at least 90 days to meet once,
• submitting annual report to both houses of Parliament,
• under Art. 157 in case of dispute between Federal Govt. and Provincial Govt. CCI would resolve it.

NEC made effective

• 18^th amend following commendable changes to the Art. 156 to make NEC more effective:
• The PM designated the chairman of the NEC, four CMs from each province, and four members the PM would nominate.
• It’s now compulsory for NEC to meet twice a year.
• NEC is required to submit an annual report to each House of Parliament.

Changes in NFC

• Two new provisions have been added to Art. 160 to ensure Provincial autonomy in the distribution of revenue by the NFC. These provisions are:

• 3A: This clause stipulates that the provinces’ share cannot decrease and must not fall below the share in previous NFC awards.
• 3B: This clause directs the Finance Ministers of Provinces and Federation to submit the reports biannually before both Houses of Parliament and Provincial Assemblies.

Amendment in Emergency Provisions

• Emergency Provisions in the Constitution under Part X have been in such a way to safeguard the autonomy of provinces in case of emergency. These are the amendments:
• Article 232 now includes a proviso requiring a resolution from the Provincial Assembly of a province to declare an emergency due to internal disturbances. If the President decides to act independently, he must present the proclamation to both Houses of Parliament separately for approval within 10 days.
• We amend Article 233, and if we suspend specific fundamental rights, we place such an order before both Houses of Parliament separately, not in a joint sitting as previously envisaged. We took this action to safeguard the value of the House of Federation (Senate), as a joint sitting would have compromised it.
• When a provincial emergency arises under Article 234, the President acts solely based on the Governor’s report, and he has the authority to respond if he receives sufficient information from another source to declare an emergency. In case of an emergency in a province, the Senate gains more value when each house sits separately, replacing the term “joint sitting”.

Other significant amendments

• The country saw many other significant amendments that bolstered federalism and favored the federalist cause. These are the amendments:
• Removal of the mediation committee: Article 71 abolished the mediation committee and now places the bill before a joint sitting of the Parliament in the event of a disagreement over amendments between both Houses.
• Article 161 is amended, and now the federal duty of excise on oil levied at wellheads is to be paid to the province in which the wellhead is situated.
• The National Economic Council has prescribed limits for provinces to raise domestic or international loans or provide guarantees on the security of the Provincial Consolidated Fund, thereby amending Article 167.
• The amendment to Article 172 devolved all lands, minerals, and other valuable items within the territorial waters to the provinces as their property.

Federalism – the way forward

18^th amendment has contributed a lot to the development of participatory Federalism in the country, still the way is very long but surely, not that far. Pakistan has moved from a strong and center dominated Federal state to a state of participatory Federalism. Provinces should have enough power to flex their muscle to cater the local issues. As James Madison, the Father of American Constitution, aptly said in his famous essays in “the Federalist”:

“It is justifiable to define tyranny as the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether hereditary, self-appointed, or elective.”

This country has already lost its half part and now the largest Province is facing the wave of independence. South Punjab also wants a separate share from Lahore. FATA reforms have become the need of hour. In case of such situation the participatory Federalism can solve the issue and save the future of country as an integrated unit. The Provinces have distinct identity since ages, they have fought against invaders and know the worth of autonomy and sovereignty. The only forward for Pakistan is to ensure more devolution of power to Provinces making them capable enough to stand and walk on their feet without looking at center.

Raza Rabbani

I would like end this paper with the story which Raza Rabbani, the chief architect of 18^th amendment, has recalled in his book “A Biography of Pakistani Federalism Unity in Diversity”. He says that once he was having a walk in a park. He saw a son fighting with father, because he wanted to drive the bicycle alone. But the father, out of fear that he might not be able to do so, was not willing to let him go. This led the young boy to fight with his father and ultimately father capitulated and allowed him to go.

As the son started to drive it alone, he stumbled after sometime and unbalanced himself. He was about to fall, when the father ran to rescue him. According to Rabbani, I envision a participatory federalism in our homeland where provinces have the autonomy to operate independently. And in any case if they are unable to function the center same as the father comes to rescue them.