Ayeshah Ahmad

BOOK REVIEW MAKING FEDERATION WORK FEDERALISM AFTER THE 18TH AMENDMENT ASMA FIAZ ABOUT THE AUTHOR Asma Faiz is the faculty of the department of humanities and social sciences at LUMS. She has previously thought at Quaid-e-Azam University, Islamabad. She works on security issues with a focus on conflict management. She is the author of the book India-Pakistan dialogue: bringing the security in. ABOUT THE BOOK The book presents diverse perspectives from different disciplines with coherence and an admirable focus on federalism. It adequately explains why federalism needs to be re-examined and be a subject of fresh scholarship. The book is an impressive, quality collection of articles. The articles address all dimensions of federalism and make a good addition to literature on federalism. It is a good addition not only to the academic field of Pakistani politics, but in the literature of the popular field of federalism in general. The 18th Amendment itself is a landmark event in the constitutional history of Pakistan. This event has been analysed in the different chapters of the book from different angles. Historical, political, economic, sociological, and environmental factors associated with this unique federal experiment have been thoroughly analysed by a galaxy of learned scholars. Moreover, it provides a rare opportunity of giving a platform for the works of eminent scholars. The book will not only introduce students to the burning issues of Pakistani politics but will also provide advice to policymakers, practitioners, and researchers for their future endeavours. MAIN THEME OF THE BOOK This books examine the evolving framework, success and failures, trends in devolution of power to the local level in the federalism in Pakistan also discuss the changing dynamics of ethnic relations with in Pakistan, dynamic of transfers of key ministries to the provinces. These include the domains of health, education and labor. Financial, security and political challenges to Pakistan also discussed in this book. SUMMARY OF THE BOOK Federalism in Pakistan in first phase (1947-71) and Punjab in second phase (1971 to 0wnwords) Pakistan under the constitution of 1956 and 1962 ruled by unitary ruling setup and finally 1973 constitution provided federalism. The 2010 18th amendment, transferring various legislative subjects from the center into provinces. From 2011 to onwards, Pakistan has been in the process of devolving power to the provinces. This has continued till 2013 elections. Federalism in Pakistan has three phases; the colonial heritage, the pre federalization phase (1947-71) and the federalization (1973 to onward) the first phase was characterized by the formalization of a federal framework for the distribution of power between the central government and the provinces in 1935. The second phase was underscored by centralization of authority and elimination of the federal structure within West Pakistan. In third phase, federalism bounced back and gradually move forward in the face of formidable challenges from the centralist framework of state authority. Before independence Muslim league high command wanted federalism because it did not control the Muslim majority provinces. Ist time1940 Lahore resolution demanding “independent and autonomous states in Muslim majority areas”. 1940 resolution served as Megna carta. Elements from ethno-nationalist leadership claim that; i- Jinnah envisioned confederation for Pakistan. ii- the 1935 India act provided no role for the center. Iii- autonomous &independent provinces entered into a covenant to establish the new federation in 1947. The center has more powers under section 9, (5), 8(2), 102 &92(a) of 1947 Indian independence act. Thus Pakistan was born into an anomalous political situation that led to two contradictory approaches: i) making federalism the only option for a viable form of government, ii) making it as toothless as possible. Pakistan faced the issue of an unbalanced federal structure with 55% population in East Pakistan and ruling elite based in the west wing, which enjoyed economic, political, and administrative power. The merger of the provinces and territories of West Pakistan into one unit in 1955 as a mega-province to achieve parity with East Pakistan served as the basis of the federation for both 1956 and 1962 constitutions. Unlike in India, the provinces in Pakistan were not reorganized on the basis of language. The ruling elite in Pakistan found language unacceptable as a legitimate source of identity. In India, language was in, but religion was out as a constitutional category. In Pakistan, religion was in, but language was out because of its perceived potential for political destabilization. The separation of East Pakistan represented Punjab the position of one province-dominates all with 58 % of population. The federal issue in Pakistan is rooted in persistent crises of center – province relations. Zulfiqar Ali Bhutto’s 1973 constitution was bicameral parliament for counter balance the Punjab’s majority in National Assembly. 2003, 17th amendment based on Musharraf LFO, increased the membership of National Assembly seats to 342 in which 10 minorities and 40 women seats. Pakistan remained federation under a military rulers. Yahya khan dissolve one unit and restore four provinces of West Pakistan that laid the foundation of 1973 constitution. 18th amendment abolished the concurrent list and transferred 40 of its 47 subjects to provinces. The 18th amendment strengthen the council of common interest such as increase membership, quarterly meetings, permanent secretariat and expanded its mandate. 18th amendment provided i) prior consultation of the of the federal government with a government of a province, ii) provinces share to be not less than in the previous award. iii) Biannual monitoring of the implementation of the award by the federal and provincial finance ministers, iv) presentation of their reports to national and provincial assemblies. The criticism on 18th amendment are failure of PCCR to meet the agenda of charter of democracy. 18th amendment is just like a 1973 constitution which did not provide independent election commission, judiciary and commission for accountability. And mechanism for a local government. Ignoring the senate in terms of power sharing, members of national economic council, it diffused the demand of provincial autonomy. Pakistan political forces of many different colors and ideologies come together to reshape the 1973 constitution and created a new political order. The constitution had been disfigured by a number of amendments by military leaders who wanted too much more centralized structure. The end result was to give the country a hybrid system of governance that operated presidential system with in guise of parliamentary structure. The 18th amendment has following objectives i) to revert the executive authority to P.M and his cabinet and hold them accountable to parliament. Ii) To allow much greater autonomy to provinces. 18th amendment will have profound impact on governance and economic management of Pakistan and sources of charter of democracy. 18th amendment removed the 6th schedule to the constitution that had given protection to 35 laws and ordinance promulgated during Musharraf period. The 18th amendment is much more than restoration of the original system i.e. repealing the 17th amendment, abolition of concurrent list, rename the NWFP to Khyber Pakhtunkhwa, limited the powers of president, more powers to provinces, membership of senate was increased, number of fundamental rights has been increased etc. On 31st march 2010, parliamentary committee on constitutional reforms signed a draft of the 18th amendment. It passes through a unanimous decision of parliament by a confluence of several political factors. There was a near consensus among political parties, civil society, the legal community & other stake holders that the distortions made in the constitution during Musharraf era through transfer pf powers from parliament and Prime Minster and his cabinet to the presidency should be removed. Insistent demand of PML-N for the repeal of 17th amendment which validated Nawaz government in 1999. Demand and pressure of smaller provinces that they would support the conversion of Pakistan’s quasi-presidential system to a true parliamentary democracy envisaged in 1973 constitution, only if their demand for provincial autonomy was met simultaneously. 18th amendment was revision of 102 articles and 1/3rd of constitution. It restored the original spirit of parliamentary system and transfers the key presidential powers to parliament and Prime Minster discretionary powers to dissolve the National Assembly or to refer a question to referendum have been removed. Articles 141 to 159 of constitution delineate the relationship between federation and provinces. Federal list has been divide into two revised parts part I contains subjects related only parliament can legislate and part II subjects with in legislative competence of parliament but to overall policy of control of CCI. Council of common interest control 18 subjects. The financial devolution process under the 18th amendment has been implemented in three phases. Phase I: in this phase, minsters of special initiatives, Zakat and Ushar, youth affairs, population welfare, local government and rural development. Phase II: devolving the minsters of education, livestock and dairy development, culture and terrorism. Phase III: the remaining seven divisions of food and agriculture, health, labor and manufacture, women’s development, sports, environment and minorities’ affair. During 1973 to 2010, CCI only met two times. Three meetings held in Bhutto era, three meetings held in-, 3 meetings held in-, one meeting held by caretaker Moeen Qureshi, one meeting held by Prime Minister Shukat Aziz. Since the 18th amendment the CCI has held 13 meetings until 2013. Article 141-174 deals with federation and provinces, in these 34 articles, Article 17 have been amended through 18th amendment. The 18th amendment also incorporated a new entry in federal list II and revitalizing the composition of CCI. Sindh is due to muhajir known as ethnic federalism or multi-national federalism. Pakistan is prominent example of ethnic federalism, a highly fertile ground since 1970s. The constitutions of 1956 and 1962 designed in respect of structure of center-province relationship in general and relations between ethnic groups in particular. Due to one unit system, in western wing created a considerable ethnic unrest. 69 years after its creation of Pakistan. There were need of creating of new provinces like Urdu-speaking muhajirs in Sindh, Pashtuns in Baluchistan, Saraiki province in south Punjab, restoration of Bahawalpur province and setting up a Hazara province. This is a very tricky project for Pakistan because some of the power centers are extremely suspicious of the proposed exercise for creating new province. There are three reasons; first, the powerful establishment considers reimagining as an existential threat rather a response to it. The national security state is deeply uncomfortable with altering the internal boundaries due to imagination of domestic politics ultimately being captured and manipulated by external forces. Second, it is suspected that once the process of creating new units is set into motion, the formula will be applied all over the country which makes at least some of the political forces like Sindhi and Pashtun leadership highly nervous. Third, the entire exercise of reformatting internal political boundaries looks like an effort that is currently focused on changing the political geography of the most powerful federating units of the country. Historically, local governments in Pakistan have strategy of military rulers to gain legitimacy. General Ayyub, Zia and Musharraf all relied heavily crafted local government structure. The dialectic of order and change were to determine the fate of Ayyub dictatorship. Meanwhile the conservative ‘urban middle class’ became the pillar of the ‘Ziaist’ political order had yet to articulate themselves politically. A strong alliance between leftists and ethno-nationalists and accordingly a symbolic relationship between the politics of class and ethnicity. Urbanization from the late 1950s gave impetus to a class of traders, merchants, transporters, and middlemen associated with the secondary and territory sectors of agrarian economy. These “middle class” emerged as political actors during Bhutto regime. Social and economic changes and the machinations of military rulers have greatly enhanced the political and economic roles of urban middle classes in Pakistan. Akbar Zaidi has written extensively about the cynical and authoritarian political preferences of the urban middle classes. The history of Pakistan is replete with efforts at the political and administrative levels to struggle with the issue of federalism and balancing the center – province relations. Early constitutional efforts undertaken in Pakistan in 1956 and 1962 constitution. Both these constitutions prescribed strong federal government and little way of provincial autonomy. The introduction of one unit scheme effectively diluted the legitimate claims of majority of East Pakistan. The 1956 and 1962 constitutions were problematic in terms of distribution of legislative powers and allocation of financial resources. These adversely affect the governance structures, these imbalances resulted in a deepening sense of political alienation and discrimination in the smaller federating units. The most obvious outcome was the separation of East Pakistan in 1971, unrest in NWFP and Baluchistan. In Pakistan center – province relations are beset by claims of relative deprivation. From post-independence period, these grievances quickly translated into lasting dissentions, which continued to hunt the center- province or intra-province relations in Pakistan. The 1973 constitution was drafted unanimously, supremacy of federal government, federal list and concurrent list, established two institutions to manage the federal-regional relations through National Economic Council and National Finance Commission. Despite its achievements, dual legislative purview of federal and provincial governments, overwhelming scope of federal legislative list, lengthy tenures of authoritarian rulers, NFC was incapable of safeguarding the legitimate distribution resources, duplication and contradiction, as minsters and departments on similar subjects existed at federal and provincial levels. The revival of devolution process in Pakistan was military dictatorship. Long spell of authoritarian and quasi-elected governments during this period hugely intensified feelings of frustration with in the provinces. District government devolution experience almost unintentionally brought home the importance of the devolution as means to empower the excluded voices. The passage of 18th amendment was a great step in the direction of devolution. The amendment itself provided a fixed time frame of transition. For this purpose implementation commission was formed. The IC enjoyed wide powers including to make or pass directions, orders, undertake proceedings, or require the making of such amendments to regulations, enactments, notifications, rulers or orders under the clause 8 of articles 270 (a) of the constitution. In 18th amendment, the deletion of concurrent list has far reaching consequences for provincial autonomy as provincial assemblies will enjoy the sole authority to legislate on all matters not appearing in the federal list. 18th amendment also handling the constitutional issues through NFC and CCI. 18th amendment was vital for political parties and smaller provinces. Through an amendment to an article 6 of the constitution, validation by a court of law of any act of high treason resulting from disrupting the constitution has been removed. Similarly, new insertions (10a and 19a) have been introduced for preserving the right to fair trial and right to information. An extremely vital addition through article 25a has also been made for creating and safeguarding the right of free and compulsory education for all children between the ages of five to sixteen. The impact of 18th amendment has ranged from consolidating parliamentary democracy against the interference of unelected presidents to strengthening the truly federal state structure in Pakistan. The implementation committees relating to health must maintain delicate balance between strong federal governments and provincial autonomy. The federal objectives of uniform health policy and drug registration should be coupled with carefully-devised provincial programs to execute central policies. In labor, provincial governments should stand up to the responsibilities. Bonded labor is just one of several complex issues surrounding labor rights in Pakistan which should be resolved by provincial governments. Pakistan has a history of parallel education systems where private schools have created for the middle classes. In last few decades non state education provision has increased dramatically with low fee private schools offering alternative provision for the poorer sections of society. The Pakistani government traditionally spent less than 2% of GDP on education. The current situation of Pakistan’s education sector is critical. The public sector still offers the majority of primary education at 86% but at middle level is 37%. 18th amendment introduced some important changes that have the direct impact on education sector. The key changes are the introduction of article 25(a); the removal of concurrent legislative list, delegating the subjects to provincial jurisdiction; the revision of federal legislative list part II; the omission of 6th and 7th schedules. The first two changes will be examine in detail in this section. The reversion of federal legislative list part II pertains to standards in higher education research, and scientific and technical institutions, while the omission of the 6th and 7th relates to privately- managed schools and colleges. Despite the importance. Despite the importance of article 25(a) the main impact of the 18th amendment is the omission from the concurrent list. The 18th amendment will take time to root problems of education sector in Pakistan are; increased fragmentation of a national education system and inability of the provinces to meet their constitutional responsibilities without restoring the private sector for help. Through article 25(a), Pakistan would end up with four different education systems, with some provinces relying more on private sector than others. Also Pakistan has been left with little or no central leadership in education sector. Federalization of the party system has had enduring consequences for federal institutions and processes. A symmetrical federalism and multi-level, multi-jurisdictional governance structures have arguably carried forward the federal principle of power sharing to new levels. While the influence of state based political parties has had an overall impact on Indian federalism, it could also have some adverse consequences for national policy cohesion. Federal coalitions between polity wide and state based political parties have played an important part in federalizing India to hitherto unprecedented levels. Federal coalitions and coalition practices have arguably corrected to a certain extent the centralizing tendencies in the Indian federal system. India’s search for unity in diversity has led it, with the help of flexible and adaptable constitution, to experiment with wide range of devices available in federalism toolkit. Relaxing the unity as uniformity criterion where necessary, it has negotiated and granted asymmetry to units, provided the basic framework of the constitution was respected. In their negotiations with movements demanding greater autonomy, the recurring refrain of central government leaders has been that ‘the sky in the limit’, provided a space can be located in the constitution. Pluralism has emerged as the core of India’s federal democracy that informs its quest for equity and justice. Diversity has been thus federalized in multiple ways, retaining the essence of federal principle but displaying remarkable pragmatism in adjusting it to suit Indian realities.