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December 27, 2015

The amended federation


December 27, 2015

The issue of the extension of the Rangers’ powers in Karachi has raised a serious constitutional question regarding the administrative relationship between the provinces and the federation. It has arisen due to the abolished concurrent legislative list in the 18th Amendment and the changes made in the provisions regarding the federation and provinces. The 18th Amendment has changed the constitution substantially and in the coming days there is going to be a large litigation between the federation and the provinces.

A constitutional court is, thus, inevitable. Law and order falls within the powers of the provinces but when it becomes a threat to the peace and tranquillity of the entire country and endangers the state, can one then insist on ‘provincial autonomy’ and play politics? To appreciate the seriousness of the question, its historical evolution needs to be examined.

During independence, the fundamental constitutional question was of provincial autonomy because power was concentrated in the central government during the time of British rule. When power was transferred from the East India Company in 1859 and 1861 to the British crown, the legislative and administrative powers were concentrated in a centrally-organised autocratic colonial government. This led to the formation of the Indian National Congress in 1886, which demanded for the participation of the locals. A series of constitutional acts from 1909 were passed to gradually share the ‘power’. Three round table conferences were held in London from 1930 to 1932 that essentially debated the issue of provincial autonomy and the extent to which provinces would be given powers (both legislative and administrative).

‘Swaraj’ (self-rule) and provincial autonomy were the popular demands of that time. Thus, a federal form of government was introduced under the Government of India Act in 1935 (GOIA). The governor-general, as a representative of the British crown, held special constitutional powers. However, the federal government could not be set up under the GOIA. Provincial governments were established after the 1937 elections but were also disbanded due to World War II in 1939. The GOIA was used later on as a template for the constitutions of India and Pakistan. In August 1947, India was divided into successor states through the Indian Independence Act in 1947.

Two points need to be made here. Under the Indian Independence Act, power was transferred to the newly-created state of Pakistan and not to any particular province. There was no specific clause regarding the nature of the future constitutions. India made its constitution in 1949 while Pakistan struggled with its own constitution for about seven years.

At last, a short-lived constitution was framed in March 1956 where administrative relations between central and provincial governments were provided on the pattern of the GOIA and the Indian constitution. Provisions contained in Articles 125 to 127 addressed the relations between the federation and the provinces. The point of strength was that the balance of power remained tilted towards the federal government. The constitution of 1956 contained three legislative lists: the federal, provincial, and the concurrent.

However, the strengths and weaknesses of this constitution could not be tested as it was abrogated in October 1958. Ayub Khan then created the constitution of 1962 and appointed Chief Justice Shahabuddin to head a commission to give recommendations. However, in his autobiography, he denied that the constitution was based on their recommendations. This constitution also envisaged a federal form of government with only two legislative lists. The federal legislature could, however, legislate on subjects not provided in the federal legislative list as well if it was in the interests of the country.

 After the civil war of 1971, East Pakistan was separated from West Pakistan and the 1962 constitution was abrogated. A new constitution had to be framed and the nation had voted in a new parliament in 1970 for this purpose. The constitution of 1973 was not different from the previous ones and the template of the GOIA was used.

The articles of the constitution defining the administrative and legislative relations between the provinces and the federation would show that after the fall of Dhaka, the statesmen and parliamentarians who were entrusted with the framing of the constitution had the demands of Mujibur Rahman at the back of their minds. The establishment, however, wanted a strong federation because, in their view, the experience of East Pakistan had nothing to do with the geographically contiguous areas now comprising Pakistan.

Zulfikar Ali Bhutto won the elections in Punjab with an overwhelming majority. The debates on the constitution of Pakistan in 1973 would show that there was a consensus in favour of a strong federation. There was a concurrent list which had 47 subjects that were beyond the scope of any particular province, including the environment, criminal law, drugs, medicine and tourism. Regional and international trends also supported a strong central government. Another feature was that Pakistan remained predominantly an agrarian society where a single-constituency first past the poll electoral system handed power to the landed aristocracy, which had centrifugal tendencies.

Part V of the 1973 constitution provides for the relations between the federation and the provinces. Chapter 1 thereof comprises four Articles (141 to 144) which provide for the distribution of the legislative powers. The executive authority of the federation extends to all subjects on which the federal legislature is empowered to legislate. The administrative relations between the federation and provinces are provided in Articles 145 to 152, which are in chapter 2 of Part V. So what changes have been made by the 18th Amendment in this chapter that have strained the federation? Article 147 has been substituted through the 18th Amendment and a proviso has been added to it. The newly-added proviso states that if the provincial government entrusts any function to the federal government or its officers then such an entrustment has to be ratified by the provincial assembly.

Two important constitutional principles are involved here. The power to entrust functions under Article 147 is an independent executive power of the provincial government. A resolution cannot affect a constitutional power. To place conditions or not is an executive function. The provincial government cannot take refuge behind the provincial assembly as the former is created after a vote of confidence from the latter. Therefore, while entrusting any functions to the federal government, it is empowered to make decisions independently.

Moreover, the proviso added in the 18th Amendment to Article 147 is a constitutional aberration. The ratification made is of an unauthorised act. If the power is given in the main clause of the article, a proviso cannot nullify that power. Article 147 cannot be read in isolation of other provisions in said chapter. There is no division of sovereignty between the provinces and the federal government like in the US constitution. The federal government is constitutionally obligated to prevent all threats to the peace, tranquillity and economic prosperity of any part of Pakistan. The federal government has this independent power.

The constitutional trends in other countries around the world show a strong federal government. Terrorism is a threat to Pakistan and in view of the latest judgement of the Supreme Court (21st Amendment case), the federal government can issue a direction under Article 245 for the defence of Pakistan. In an increasingly dangerous world, only a strong federation can protect the sovereignty and integrity of our country.

The writer is additional attorney general for Pakistan.

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