In a highly complex and polarised political chessboard, a federal constitution bolstered by 18th Amendment can rightly be considered as an achievement of democratic process. It attempted to repair — at least to some extent — the callously vandalized constitution during unelected dictatorial regimes.
In the given confinements, certain more serious distortions were skirted understandably for being too inflammatory to touch. Nevertheless, the exercise addressed several long overdue concerns of political parties and civil society. However, the much rejoiced and celebrated scheme of constitution which is based on distribution of powers between the federal government and the provinces is on a pernicious retreat these days. If the trend persisted, 18th Amendment would eventually lose its luster.
The iron-fist of the Centre is crumpling it to guard its hegemony of six decades that has virtually brought the country at brink. The stunted country had only two ephemeral constitutions till its first 25 years. A series of power-hungry myopic rulers trampled very fundamentals of the much revered Pakistan Resolution of 1940, which is now effectively reduced to a mere annual ritual. A state bunking off from Constitution for more than two decades was bound to descend into chaos.
The power appetite culminated into a bloodbath in 1971 when finally the country lost its larger part. Recovering from the trauma, Bhutto regime attempted to strike a balance between provinces and the Centre through the Constitution of 1973. In spite of its several shortcomings, the Constitution brought a semblance of participation for provinces.
Introduction of a bi-cameral Parliament, Council of Common Interests (CCI) and a to-be-abolished concurrent list were a recipe to mollify enraged smaller provinces and underpin a crumbling federal structure in the leftover country. The Constitution of 1973 was also abrogated within four years. It was further brutalised through a series of amendments, mutilating it beyond recognition.
Council of Common Interests could have been an effective forum to address inter-provincial conflicts, thus assuaging grievances of provinces and strengthening a federal structure. However, the CCI remained virtually paraplegic till 1991 when its rules were formulated after its 18th birth anniversary. Its virtual nonexistence is evident from the fact that it held only 11 meetings till 2010 i.e. average one meeting after three and a half years.
Both Gen Zia and Gen Musharraf never considered it a forum worth convening. What chagrins one more is the fact that the PPP governments in 80s and 90s also failed to convene a single meeting of the CCI. The 18th Amendment in fact resuscitated the moribund institution by making it mandatory to meet every quarter, supposedly equipping it with a permanent secretariat, headed by the prime minister and a strong provincial representation by the chief ministers.
The 18th Amendment abolished the Concurrent List introduced in 1973 and maintained only Federal Legislative List divided between Cabinet and the Council of Common Interests. 40 out of 47 subjects of the scrapped Concurrent List were devolved to provinces and the CCI since very beginning was entrusted to formulate and regulate policies in relation to matters in part two of the Federal Legislative List.
The CCI under Article 154 has been mandated to exercise supervision and control over related institutions enumerated in the Federal Legislative List-2. These provisions tilted the constitution in favour of provinces, potentially inculcating long over-due sense of participation and empowerment. This was, however, difficult to swallow for unscrupulous elements who have been enjoying uninterrupted power for decades.
To safeguard their vested interests, the malicious elements have cleverly put the 18th Amendment on the reverse track by clamping the CCI before it could get wings. One after the other, ministries and departments were created on flimsy grounds to manipulate the devolution of powers. Several subjects listed under the CCI charter i.e. Federal Legislative List part-2 have been gradually encroached by Islamabad.
Lawyers Barrister Zamir Ghumro and Malik Naeem Iqbal have recently filed a constitutional petition in the Supreme Court, challenging creation of ministries and departments manning functions mandated to the CCI. By virtue of 18th Amendment, both federal cabinet and the CCI are constitutional bodies with clearly delineated roles and well demarcated jurisdiction of authority. Against this backdrop, creating ministries and departments for the functions falling in the remit of the CCI is not less than an act of transgression on part of the federal government. Such ministries and departments in fact undermine the authority of the CCI accorded by the Constitution.
Article 154 unambiguously remits this authority to the CCI by saying “The Council shall formulate and regulate policies in relation to matters in part-II of the Federal Legislative List and shall exercise supervision and control over related institutions”. In presence of a ministry, authority or a department, the CCI would clearly be deprived of the aforementioned functions. The subjects in question include inter alia water and power, petroleum & natural resources, railways, ports, industries and production and inter-provincial coordination.
Supreme Court in 1997 held in Gadoon Amazai case (reported as 1997 SCMR 641) that only CCI could run WAPDA, a subject of Federal Legislative List Part-II and in the WAPDA Act, wherever word ‘Federal Government’ occurs, it should be replaced by CCI. Hence the verdict effectively bars the federal government to run WAPDA. Similarly, other subjects such as oil, gas, railways, ports, inter-provincial coordination come under the purview of CCI but the federal government has unconstitutionally created ministries over these subjects.
Federal bureaucracy has never reconciled with such a landslide transfer of authority to provinces. Its proclivity to centralise all powers is rooted in the decades of authoritarian dictatorial regimes, when they enjoyed unbridled authority. They rabidly resisted abolishment of ministries and departments under plethora of excuses and kept besmirching provinces for not having enough capacity to manage these responsibilities. By retaining these functions, they would not only secure their presence in Islamabad but also exercise control over financial resources generated from provinces.
As a sizeable part of the federal bureaucracy comes from Punjab at the expense of smaller provinces, they would never accept any scheme of power sharing that dethrone them from the ruling seat of federal capital. Thanks to chicaneries of a haywire federal bureaucracy, the CCI is gradually degenerating into a spineless entity for not being able to regulate, supervise and control vital functions accorded to it by the constitution. This jeopardizes the basic concept and essence of 18th Amendment that aimed to strike a balance of power between the Centre and the federating units.
The federal government has also illegally retained some of the functions that are purely provincial. Under Article 42, the subjects not enumerated in the federal list, are provincial subjects. Article 142 (c) reads “a Provincial Assembly shall, and Majlis-e-Shoora (Parliament) shall not, have power to make laws with respect to any matter not enumerated in the Federal Legislative List.” The exception has been elucidated in Article 144 under which the provision has been made only if one or more provincial assemblies pass resolutions to confer such authority upon the federal government.
Such resolutions were passed by the provincial assemblies in 2005 on the basis of which National Disaster Management Authority (NDMA) was created by the federal government. Similarly, in order to entrust health regulation to the federal government, provincial assemblies passed resolutions. Both examples are strictly in accordance with the constitution.
However, in a brazen disregard of the constitution, the federal government has created ministries and departments of Information, Housing, Textile, Privatization, Narcotics Control, National Food Security, Alternate Energy Board, Evacuee Property Trust Board, Benazir Income Support Programme (BISP), National Youth Loan Scheme/Programme and EOBI. None of them is enlisted in the Federal Legislative List. Hence creation of ministries, organisations, programmes or schemes on such subjects actually contravenes the constitution and is, therefore, an act of infringement. Concomitant to that, the federal government occupies larger pie of resources as well.
In 2013-14, the size of federal budget was Rs3,985 billion whereas the total budgetary outlay of all provinces was only Rs2,031 billion. The federal budget allocated only Rs1500 billion for provincial share. Provinces have to cater to a large population for all needs and the allocations are starkly skewed in favour of the federal government.
Federal bureaucracy is eager to protect these huge allocations that will become questionable if all subjects are fully transferred to the provinces and the CCI is allowed to regulate its functions. Reversal of 18th Amendment would be a fatal below to federation and will revive the subsided conflict between provinces and federation.