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August 9, 2020

Administrative federalism

Opinion

August 9, 2020

The 7th recital of the preamble of our constitution promises that Pakistan shall be a state where the “units will be autonomous”.

Roughly one-thirds of our 280-article constitution is dedicated to giving shape to this promise of provincial autonomy. This is why there are separate chapters in the constitution, describing the respective composition and powers of the federal and provincial governments. Yet, the full implications of this doctrine are still not widely appreciated. Even though it is enshrined in the constitution, when you get down to the details, the doctrine of federalism is still seen as seditious by some and anarchist by others.

Of particular trouble to some is the administrative part of federalism. In a federal administrative, each tier of the government is supposed to have its own civil service, set up by its own legislature and accountable to its own cabinet. This was exactly the idea behind the 1973 constitution. Article 240 stipulates that “posts in connection with the affairs of a province” are supposed to be held by persons whose “appointment and terms of service” are determined “by or under an Act of the provincial assembly.”

The converse is also true: “posts in connection with the affairs of the federation” are supposed to be held by persons whose “appointment and terms of service” are determined “by or under an act of the parliament.” Provincial posts have clearly been placed beyond the purview of the center. Add to this Article 242, which stipulates that each tier of government will have its own public service commission.

Yet, a look at the facts of our current administrative structure shows that the reality is altogether different. At the very top of the provincial bureaucracy in each one of our four provinces is a federal civil servant – always. Somehow, in 73 years, we have never allowed the provinces to appoint one of their own civil servants as the chief secretary. Even the letter of appointment of a chief secretary is issued directly by the federal government, as if he were a viceroy being deputed to the province concerned.

The result is that even if the entire provincial cabinet of a province is unhappy with a particular chief secretary, they still can't touch him. The most a provincial cabinet can do is write lengthy letters to the Establishment Division of the federal government and hope for the best. The tier below chief secretaries, that of provincial secretaries, is also largely occupied by federal civil servants.

The head of almost all local government institutions – commissioners, deputy commissioner and directors-general of urban development authorities – are also mostly drawn from amongst federal civil servants. Occasionally a provincial civil servant also makes it to the top posts. But it’s never someone in the employ of the local government itself.

This state of affairs is quite obviously the antithesis of administrative federalism, and therefore quite unconstitutional. No analyst can fail to notice this fact unless s/he is blinded by self-interest or worse, given to unthinking reproduction of colonial era governance practices.

Not only is this arrangement facially unconstitutional, it also makes for bad policy. What this means is that if, at age 25, you didn't pass a certain exam conducted by the Federal Public Service Commission and didn’t make it into a certain occupational group, you've basically missed the bus. After that, no matter how good you may be in the field of public service, you are now going to remain low down in the chain. Neither in your chosen local authority nor in your provincial government can you rise to the top slot. You can't work or study your way all the way up.

Obviously, it’s a discriminatory system which can’t attract talented people. And it demoralizes 99 percent of all civil servants in the country who didn’t make it to that particular class of federal civil servants who hold the reins of power everywhere.

The framers of Chapter 1, Part XII of the constitution – which envisages separate civil service laws and separate public service commissions for the center and provinces – did not frame these provisions without a reason. Their aim was to dismantle the 'reservation system', a colonial legacy, whereby all the top tier posts in provincial governments and local governments had been reserved for federal civil servants.

This system was put in place by the British colonial government through Section 98 Government of India Act, 1915. The problem was that ICS officers, a cadre of federal civil servants, were the only Indians that the British really trusted – not provincial bureaucrats nor politicians. This is why the British decided to install ICS officers at all the top slots – be it in local authorities, provincial governments or the federal government. Centralizing governance structure was meant to dampen the risks of federalism.

Our constitution was meant to bring a sea-change in this system. Yet, the reality is that 105 years after the Government of India Act, 1915, we are still pretty much stuck there. The revolutionary parts of the constitution have been ignored so long that now they have almost been forgotten and erased from our legal consciousness.

This is why we – a handful of lawyers, civil servants and political activists – have taken it upon ourselves to raise demands for administrative federalism. We are not being seditious or anarchist; we are just seeking enforcement of a promise which was made to us by the founders of Pakistan and which remains enshrined in our constitution.

The writer is a partner at The Law and Policy Chamber.

Email: [email protected]