Saturday June 22, 2024

The spirit of federalism

By Mashhood Hassan Azam Awan
September 10, 2022

The idea that Pakistan shall be a federation wherein provinces shall be autonomous was contained in the Objectives Resolution of 1949. The framers of the 1973 constitution had also contemplated Pakistan to be a federation with autonomous provinces. Any doubts thereto stood displaced by inserting Article 2-A which made the Objectives Resolution part and parcel of the 1973 constitution.

Unfortunately, through political and bureaucratic engineering, the emergence of a federation in its true sense was delayed. This was because those at the center of the federation were disgusted with the idea of dissolution and devolution of powers to the provinces. Political scientists and sociologists alike agree that the most appropriate method to prevent abuse of power is to distribute powers across all tiers of government – devolve powers across the centre, the provinces and local governments. Let us call it decentralization.

The passage of the 18th Amendment aimed at the widespread distribution and devolution of powers between the centre and provinces and further devolution thereof to the local governments. This meant that decentralization made the provinces constitutionally autonomous. It is ironic that ever since the passage of the 18th Amendment, chessboard moves are being made to undo it.

Hurdles have been created, from time to time, to hamper the operationalization of the 18th Amendment in letter and spirit. To this day, a strong centre is being maintained at the expense of provinces despite the stark fact that there is a constitutional obligation to devolve functions, powers, resources and responsibilities to the provinces. The post-18th Amendment era presents a paradoxical situation. On paper and in theory, provinces are autonomous but in practice there still exists a very strong center. This amounts to a fraud on the 1973 constitution and nothing less.

A bare reading of the constitution, as it is, clearly mirrors a concept of administrative federalism based upon a theoretical model guaranteeing provincial autonomy. But one finds an understandable endeavour from one side which is reluctant to abdicate power despite constitutional obligation. An all-powerful federal civil service is unhappy with the constitutionally prescribed system of a functional provincial civil service administering the provinces. The 1973 constitution does not support the federal civil service at the expense of the provincial civil services.

To this date, personnel of the federal civil service – especially those belonging to the all-powerful District Management Group (now renamed as Pakistan Administrative Service Group) – are appointed as secretaries and chief secretaries of provinces. Along with the police service of Pakistan, the Pakistan Administrative Service Group runs the districts and manages law and order across the board.

The idea of an all-powerful federal civil service as existing today owes its origin to the British colonial regime that ruled the Indian subcontinent which posited central civil servants (their own trusted and recruited Indians of the subcontinent) at top positions across the board in order to retain the strings of control and power at the center.

Seventy-five years after independence, Pakistan is still maintaining an all-powerful federal civil service and the strong strings of control and power are retained by the Islamabad Capital Territory. Is it not a clear affront to the system described in the supreme law of the land? Connected therewith is another poser as to who will bell the cat?

A plain reading of the Objectives Resolution, the 1973 constitution and the 18th Amendment unveils that there is no room whatsoever for the federal civil service to retain administrative control and power over the provinces. This opinion stands further substantiated by a conjunctive reading of Articles 240 and 242 of the constitution which provide for enacting distinct civil service laws and establishing distinct public service commissions at the federal and provincial levels. In a nutshell, every provincial government ought to have its own provincial civil service independent of the federal civil service and such provincial civil service being made under law enacted by the provincial assembly.

It has been a little over 75 years since Pakistan attained independence from the British colonial regime. A strong federal civil service – a remnant of the past legacy of the British colonial era – exists to this date to exercise administrative control and power over the provinces in spite of constitutional position to the contrary. The existence of this administrative control of federal civil service over the provinces is alien to the constitution. Yet another big question to be answered by policymakers is: who will put an end to such flagrant abuse of constitutional obligation?

The Objectives Resolution, the 1973 constitution and the 18th Amendment were passed to strengthen provincial autonomy, deconstruct the strong administrative control of the federal civil service over provinces and posit a provincial civil service for each province. This is an unholy intrusion into constitutional provisions. This paradox requires immediate surgery. An all-powerful class has virtually made the constitution subordinate. It is strange that the authorities at the helm of affairs at the federal as well as provincial levels are not serious about redeeming the constitutional pledge. As a result, provincial autonomy is being compromised constantly with impunity.

Consistently and constantly, by political engineering, efforts have been made to have a strong centre at the expense of the provinces. Tactics are being employed to reverse the 18th Amendment to the constitution – curtailing provincial autonomy by clipping the wings of autonomous provinces in utter violation of the constitution. An example of such engineering is an exponential increase in the number of federal civil servants through vertical and horizontal entries to run the administration of provinces in order to retain and strengthen federal control and power over administration of provinces. This is being done through amending the rules – especially CSP (Composition and Cadre) Rules 1954 including other connected and allied orders.

A recurring fraud is being committed against the 1973 constitution and the all-important purpose of provincial autonomy, a hallmark for a federation based upon the constitutionally prescribed theory of administrative federalism ensuring provincial autonomy and decentralization of power. This is being consistently trampled and the very aims and objectives sought to be achieved by the 1973 constitution and the 18th Amendment are being defeated.

The writer is a lawyer and partner at a law firm based in Islamabad and Peshawar.