Federalism says Dicey is a political contrivance intended to reconcile national unity with maintenance of state rights. The philosophy therefore is to have a political system where central government posses limited powers so that it may not infringe upon the rights of its units.
According to a research, today, across the world there are approximately 28 countries practicing federalism i.e. Argentine, Canada, Iraq, Brazil, Australia, Ethiopia, Pakistan etc. and no less than 40% of the world resides in these federal structures. Federalism comes from the Latin word ‘Fuoedos’ which means a voluntary contract, treaty or a covenant between the two or more than two stakeholders willing to cooperate. In this way, we have seen that the countries practicing federalism face various problems and issues relating to distribution of powers and resources, ethnic imbalance and various constitutional predicaments. Therefore, they have developed their own mechanisms to deal with those matters by means of reaching to a consensus.
Pakistan too being a federal state has faced similar issues since its inception. It took Pakistan’s legal and political minds nine years to make a proper constitution for the country in comparison to its counterpart India which did not face such a delay. Thus, Pakistan during this time was seen experimenting with different forms of government from a parliamentary in 1956 to the presidential in 1962.
Provincial autonomy, an essential feature of a federal structure was smashed to the ground through introduction of an infamous One Unit formula. Military dictators trimmed and molded the constitution in their favor to remain much longer in power. They at several times destroyed the spirit of this structure by initiating a rule of military-bureaucratic oligarchy.
Resultantly, the marginalized provinces started questioning the legitimacy of the federal government over unequal distribution of resources.
In Baluchistan secessionist movement started with the formation of Balochistan Liberation Army (BLA). In Sindh large number of people was arrested while demanding their rights. Pakistan witnessed an unfortunate event in 1971 in the form of separation of East Pakistan and the reason behind was none other than not giving the provinces their due. Mistrust developed at that time still keep on coming to haunt the national integration of the country in different forms and manifestations.
The constitution of 1973 adopted on 12th of April 1973 by the then Prime Minister Zulifkar Ali Bhutto proved to be a light in a tunnel: ushering a new era of political and constitutional maturity. Three lists i.e. Federal list, Provincial list and Concurrent list were added to divide area of jurisdiction of power between center and its units. It served the ideological and democratic aspiration of the people as a mechanism in the form of Council of Common Interest (CCI), National Economic Council (NEC) and National Finance Commission Award (NFC) was developed to address the issues of federation such as distribution of resources. But the fruits gained through this constitution did not last longer with the imposition of martial law by General Ziaul Haq.
In 1985, Ziaul Haq brought the controversial 8th Amendment in the constitution and put in Article 58 2(b) that gave vast powers to the head of state to dissolve the legislature if deemed it necessary. From 1985 to 2000 it caused dissolution of five elected governments. Furthermore, Nawaz Sharif government tried to revive the parliamentary democracy by introducing 13th Amendment but once again General Musharraf suspended the 1973 constitution and revised it by inserting the 17th Amendment, once again empowering the head of state.
In this way, the dream of abolishing the concurrent list for once and all became a reality in 2008 When PPP led government formed a parliamentary committee to make a way for the changes in 1973 constitution under the leadership of a renowned parliamentarian and then senate chairman Mr Raza Rabbani. After the two years of deliberation 18th Amendment became a law in 2010 and was termed as a mini-constitution.
The passage of 18th Amendment was regarded as a watershed moment in the checkered constitutional history of Pakistan. It was a first time that the president had relinquished his powers willingly transferring them to Parliament and Prime Minister. It became a radical step turning the country into a participatory federation in line with 1973 constitution. This landmark amendment introduced changes to about 36% of the constitution as 102 out of 280 articles were amended and added. Thus, it redefined the structural contours of the state through a paradigm shift from a heavily centralized to a predominantly decentralized federation.
The major changes done through this amendment were: firstly, the amendment to the article 6 was done in order to preempt military coup in future. It stopped non-democratic forces to dominate the political landscape of the country. Thought the said article was part of 1973 constitution of Pakistan but still military generals found a way to derail the democratic process. In this way, harsh language was used in the amended article 6 to send a clear message that if anyone tried to abrogate the constitution he will be charged with a treason case and given death penalty. Current ruling of the court against General Pervez Musharraf is a clear manifestation that nobody will be left unpunished.
Secondly, it struck down the infamous article 58 2(b) inserted by the then president Ziaul Haq. Through this article the head if state amassed huge powers and could sake the elected prime minister. Thus, it returned the power to parliament. Maintaining the spirit of a parliamentary structure, president now became a titular head with ceremonial powers. Now as Bagehot says, “he reigned but did not rule. The 18th Amendment eliminated the “Concurrent List”, i.e. the enumeration of areas where both federal and provincial governments may legislate but federal law prevails.
Laws governing marriage, firearm possession, labor, educational curriculums, environmental pollution, bankruptcy, and 40 other diverse areas the provinces would have exclusive jurisdiction and each provimcial assembly for drafting its own laws on the issues The 18th constitutional Amendment potentially impacts the mandate of several Federal Ministries and by implication increase the roles and responsibilities of the related institutions and administrative structures at the provincial level.
According to United Nations Development Programme, another important but under-reported change now specifies that future National Finance Commission agreements – which set the distribution of national revenues between the central government and the provinces – cannot reduce the provinces’ share beyond that given in the previous agreement (Article 160). Provincial governments also now have greater authority to raise domestic and international loans and give guarantees on the securities of provincial Consolidated Fund.
Since the coming of PTI government in Pakistan voices regarding rolling back the 18th Amendment had been circulating and that became true when some of the Prime Minister’s cabinet members spoke about the idea openly. The administrative and financial freedom extended to the provinces by the said amendment has been blamed as a thorn in the eyes of federal government. It has weakened the central government’s authority over the purse of the country.
This debate has highlighted the deep socio-political and economic fissures in our political system and resulted in two major factions i.e. those in favor of unitary and presidential form and other in federal parliamentary structure. Those in favor of federal structure vehemently put their argument that unitary or presidential form of government can never be a solution to myriad political-financial problems. It is not the populist leaders who put the country on right track in a night but it is a federal structure enjoined by the strong leadership that provides great dynamism to the system.
The critics of the amendment say that the transfer of fiscal resources to the provinces has limited financial space for defense expenditure by the federal government and debt servicing constituting the biggest chunk of the budget. Various economists of the country defy this view by saying that federal government is left with surplus after paying for defense. Bad economic condition is not due to the 18th Amendment but due to the worst economic policies and lack of financial management.
There is a great need of bringing in the idea of cooperative federalism in Pakistan where diversity of cultures and harmony of interest should be made possible. The Eighteenth Amendment and National Finance Commission Award (NFC) paved the for equality and unity in this way as the it was the need of hour as well to give provinces what was their due on equal basis. Still more work is needed in order to ensure the true spirit of federalism and reap it dividends.