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PAKISTAN* (Islamic Republic of Pakistan) Aisha Ghous-Pasha and Kaiser Bengali* 1. History and Development of Federalism Pakistan sits at a strategic location, situated as it is at the conjuncture between the Middle East and Asia. Its neighbours are India to the east, the central Asian republics and China to the north, Afghanistan and Iran to the West, and the Persian Gulf and the Indian Ocean to the south. The country has an area of 879,902 km2 and a population of over 130 million people. The territory comprising Pakistan today encompasses the Indus Valley civilization and, thus, is an entity with ancient roots. For most of the past 4,000-5,000 years the Indus Valley has remained a distinct socio-political entity, but it has interacted closely with central Asia to the west and the Gangetic valley to the east. For three periods, amounting to only about 500 years—during the Mauryan (323-180 BC), the Mughal (1526-1857) and the British (1857-1947) reigns—the region was brought under a single centralized rule. While 1857 represents the formal end of the Mughal Empire, it had been in decline for some years and had already lost control over several states, which acquired an independent or quasi-independent status for between 50 and 100 years before being incorporated into British rule. British rule was extended to these territories with the occupation of Sindh in 1843 and Punjab in 1849. Most of what is now the North West Frontier Province (NWFP) was part of Punjab and fell to the British in 1849. British control over the mountain tribes, however, was secured only after the Third Afghan War in 1878, and northern Balochistan was brought under British rule as late as 1876. Pakistan emerged as an independent state on 14 August 1947. It was comprised of two wings, separated by over 1,500 kilometres of Indian territory. The western wing consisted of the Muslim majority provinces NWFP and Sindh, the Muslim majority western part of Punjab province, and the territories comprising Balochistan. The eastern wing consisted of the Muslim majority eastern part of Bengal province and the Muslim majority district of Sylhet in Assam province. It included all princely states falling into the jurisdiction of the new country. The states of Hyderabad and Junagadh were populated largely by Hindus, but were ruled by Muslim kings. They acceded to Pakistan, but were occupied and annexed by India. The accession of the Muslim majority state of Jammu and Kashmir is a matter of dispute between Pakistan and India.1 The nature of the struggle to create Pakistan plus its geography and demographic composition have always demanded and continue to demand a federal solution. This, unfortunately, has not been the case. The failure to adhere to federal principles of organization and governance has caused a great amount of instability and strife, including a civil war which resulted in the separation of its eastern wing. The creation of Pakistan was the culmination of the political struggle of the Muslims of British India. The movement proceeded in two phases. The first phase revolved around ensuring Muslim rights in a united India through separate electorates, provincial autonomy and adequate representation at the centre. The phase ended with the Government of India Act of 1935. The attitude of the Indian National Congress set in motion the second phase of the struggle and Muslims began to question the very nature of federalism as a solution to India’s chronic inter-communal problems. Muslims began to see themselves as a separate nation in order to determine their own cultural, social, legal and political system. It was against this background that the Lahore Resolution of 1940, now known as the Pakistan Resolution, called for a separate state of the Muslim majority provinces of British India. The failure of federalism led to the partition of British India and was accompanied by civil strife on a vast scale. The essence of federalism was embedded in the Lahore Resolution. In the elections of 1946, the provinces of Punjab and Bengal voted the Muslim League—the party leading the struggle for Pakistan—to power by a landslide. The Sindh Provincial Assembly voted to join Pakistan and NWFP and Sylhet voted for Pakistan through a referendum. All princely states within these territories acceded to Pakistan. The Kalat State Assembly initially voted for independence, but was subsequently persuaded to become part of Pakistan. Pakistan, thus, represents a case where the regional units set about establishing a federation, rather than a central authority granting provincial autonomy to its various components. Pakistan was made up of two parts separated by over 1,500 kilometres. Federalism was, thus, ordained by the very nature of the country’s geography. The separation of the eastern wing (now Bangladesh) in 1970 left Pakistan as a linguistically and ethnically diverse, but geographically homogenous, entity. Today, the country is comprised of four provinces—Punjab, Sindh, NWFP and Balochistan. The demographic composition of the country is skewed, with Punjab comprising about 56 per cent of the population and the rest of the provinces combined comprising about 44 per cent. In a democracy based on majoritarian rule, this means that in any issue where the country is polarized along provincial lines, three provinces combined will comprise the minority and the one majority province will carry the vote. The inter-provincial demographic composition, thus, rules out a unitary state or even a quasi-federal state. 2. Constitutional Provisions Relating to Federalism The first steps towards federalism were initiated by the British government with a package of constitutional reforms embodied in the Government of India Act of 1935. The Act established a highly centralized federal—or quasi-federal—system, controlled and managed by the colonial bureaucracy and with sovereignty resting in the British Crown. The “federal” structure was constructed for an India that was neither free nor independent and was administered by a colonial power which was compelled to give some autonomy to its subjects but was extremely suspicious of them. Through the Independence Act of 1947, Pakistan adopted the Government of India Act of 1935, along with certain amendments, as its interim constitution. Pakistan, thus, inherited its constitutional provisions from the British. Despite the federal structure and provisions enshrined in the constitution, however, Pakistan is basically a unitary and centralized state. Post-independence Pakistan has effectively retained the quasi-federal character of the state. The central bureaucracy continues to be in control. According to the Preamble (paragraph 2) of the constitution of the Islamic Republic of Pakistan, sovereignty rests with Allah, to be exercised by the representatives of the people. De facto, however, sovereignty has come to rest with the military establishment. The repeated abrogation or suspension of constitutional rule and the imposition of direct military rule, the fact that the 1962 constitution was imposed by the military, and the fact that the amendments in the 1973 constitution2 were dictated by the military bear testimony to this fact. There are four elements in the constitution which relate to federal provisions and deal with the division of powers and functions between the centre and the provinces. They are: (1) the Upper House of Parliament (the Senate) (Article 59); (2) the legislative lists (Federal and Concurrent Lists) (Article 70(4)); (3) the Council of Common Interests (Article 153); and (4) the National Finance Commission (Article 160). The constitution provides for a bicameral federal Parliament, comprised of two Houses (Articles 50, 51, 59). The National Assembly is the Lower House and represents the country as a whole. The Senate is the Upper House and represents the constituent units. The National Assembly consists of 200 members, directly elected by adult franchise in a first-past-the-post electoral system. Seats in the National Assembly are allocated on the basis of population to each province, the Federally Administered Tribal Areas (FATA), and the Federal Capital. The Senate consists of 63 members who are elected by the provincial Assemblies. All provinces are equally represented in the Senate. The four provincial Assemblies elect 14 members each, the National Assembly members from FATA elect five members, and two members are selected to represent the Federal Capital. The entire National Assembly acts as an electoral college for electing the members of the Senate from the Islamabad capital territory. The constitution divides power amongst the executive, legislature and the judiciary. But, as in most federal states, it is the principle of division of powers among the constituent units that has remained a significant issue in the constitutional development of Pakistan. The division of powers between the federation and the provinces is largely determined by two legislative lists: the Federal List and the Concurrent List. The federal Parliament can enact laws on the 67 subjects in the Federal Legislative List, and both the federal Parliament and the provincial Assemblies can enact laws on the 47 subjects in the Concurrent Legislative List. Subjects outside of these two lists are considered residuary subjects and comprise the exclusive domain of the provinces. Aside from the provisions which grant residuary power to the provinces, and allow each province to have its own legislature, virtually all other clauses ensure the hegemony of the government at the centre over the governments in the provinces. The functions of the federal government extend deep into the workings of the provincial governments (Articles 128, 145-152). The federal government can appoint the Governor for each province, approve the dissolution of the provincial Assembly by the Governor, approve the appointment of a caretaker provincial government by the Governor, confer functions on a province with respect to any matter to which the executive authority of the central government extends, and give directions to a province. Furthermore, the federal government can appoint and transfer the judges of the High Court, the highest provincial court and second to the Supreme Court at the federal level (Article 193). The federal government is entitled to appoint the provincial chief secretary and the provincial police chief, thus ensuring control of the provincial civil service and the provincial police. Federal governments have routinely used the powers outlined in Article 112(2) to dissolve provincial assemblies and dismiss provincial governments. Although the composition of the Senate means that the provinces are represented in the federal government, the Senate’s role is undermined by Article 73, which denies it any role pertaining to money bills, including the federal budget. It is excluded from any role in decisions relating to the borrowing of money, or the giving of any guarantee, by the federal government, even though one or more of the provincial governments may be incurring the liability of any such loan. The Senate is also excluded from any role relating to the audit of the accounts of the federal as well provincial governments. With reference to the legislative lists, although the provinces have no jurisdiction over the Federal List, the federal Parliament has power in terms of provincial jurisdiction (Article 142(b)). Where there is a conflict between the federal Parliament and a provincial Assembly on a subject relating to the Concurrent List, the writ of the former prevails (Article 143). Thus, the Concurrent List has in actual fact become part of the Federal List. The centre has appropriated even a subject like local government, which is on neither the Federal or Concurrent Lists and which, according to Article 142(c), lies within the exclusive jurisdiction of provincial governments. In effect, this means that the provincial governments have merely promulgated the relevant Local Bodies Ordinances as per the draft received from the federal government. Functionally, thus, the country is a federation in name but centralized in substance. There are two important institutions which are outlined in the constitution and should be mentioned here. The first, the Council of Common Interests (CCI), is outlined in Article 153. It is a quasi-executive body comprising of the chief executives of the centre and the provinces or their designated representatives. It is charged with the duty of formulating and regulating policies in relation to the subjects enumerated in Part II of the Federal Legislative List (railways, mineral oil—as opposed to palm, castor seed or sunflower oil, which are used to prepare cooking oil—and natural gas) and one item of the Concurrent List (electricity). The Council has been given the mandate to take up matters of dispute between the provinces, and between the centre and any one or more provinces. However, the measure of the potency of the Council can be gauged from the fact that it met only once during a whole decade of constitutional rule from 1988 to 1999. The second institution is the National Finance Commission (NFC) (Article 160), which is a joint federal-provincial body with the mandate to deal with the distribution of federal tax receipts. This is an important provision, given that the taxation structure shows a clear federal bias and federal taxes account for more than 90 per cent of all taxes put together. This feature has remained more or less the same since the constitutional reforms of 1935. The fact that the centre holds a virtual monopoly over the purse strings imposes a major constraint on the operation of the already weak and feeble federal provisions. Article 70 (4(43-53)) of the constitution entitles the federal government to collect nine categories of taxes, duties and fees. They include taxes on: non-agricultural income; corporate income; sales and purchase of imported, exported, produced and manufactured goods consumed within the country; capital value of assets; mineral oil, natural gas and materials used in the generation of nuclear energy; and transportation of goods and passengers carried by railway, sea or air, and their fares and freights. The federal jurisdiction also includes duties on imports and exports, excise, estate and property, and succession to property, as well as fees in respect of any of the above. The major tax revenue sources of the provinces are a stamp duty and a motor vehicle tax. A few years ago, the federal government abolished the district export tax and the municipal octroi (an entry tax on goods). The federal government did not have constitutional jurisdiction to impose a decision relating to the residuary domain of the provinces, but such blatant interference is a common feature of Pakistan’s federal-provincial relations. In practical terms, local bodies now have virtually no source of income and have to rely almost exclusively on federal and provincial grants to meet their expenses, including payment of salaries. Transfers from the federal divisible pool account for the major share of the revenues of provincial governments. These transfers are made according to the award given by the National Finance Commission every five years, with the last award having been given in 1996. The federal divisible pool consists of all taxes levied by the federal government, federal excise duties, and export duty on cotton. The federal government retains 62.5% of the net proceeds, arrived at after deducting 5% as collection charge, and the remaining 37.5% is distributed among the four provinces. The basis of distribution continues to be a one-point criterion: population. Thus, according to the population census of 1991, the provincial shares were arrived at as follows: Punjab 57.88%, Sindh 23.28%, NWFP 13.54% and Balochistan 5.30%. In addition to the federal divisible pool, provinces also receive net profits, royalty, excise duty and a development surcharge, as the case may be, on account of generation/extraction of hydro power, crude oil, and natural gas on the basis of location of production. Two provinces—NWFP and Balochistan—also receive special grants on account of their relative underdevelopment. 3. Recent Political Dynamics Pakistan has made several attempts since independence to construct a federal model suited to the various components of Pakistani society. The first constitution was enacted in 1956, but was abrogated by the military in 1958. The military imposed a constitution in 1962, which was again abrogated by yet another military general in 1969. Finally, the first directly elected Parliament enacted a constitution in 1973 which has continued to command the writ of the people, despite its suspension by the military, first in 1977 and again in 1999, and despite the distorting amendments incorporated by military rulers. A common feature of all the constitutions is that they embed the quasi-federal model of governance promulgated in the Government of India Act of 1935. Currently, Pakistan is under military rule and the constitution remains suspended.3 This is not an unknown occurrence in Pakistan. The country was also under military rule from 1958 to 1962, from 1969 to 1973, and from 1977 to 1988. For the intervening periods—1947 to 1958, 1962 to 1969, 1973 to 1977, and from 1988 to 1999—the country was under some sort of constitutional rule. All the constitutions provided for a federal form of government, at least in name. Military rule, however, amounts to a de facto reversion to a unitary form of government. This is the state of affairs today. In addition to the issues relating to military rule, revenue and finance have also been a contentious issue in recent years. In 1997 federal transfers to the provinces declined by about 5 per cent, causing severe difficulties for the provincial financial managers. This decline is related to lower federal tax receipts on account of lower tax collection and a decline in the level of economic activity. This is indicated by the fact that in the fiscal year 1998-99, actual tax revenues were lower by one-third relative to the revenues projected by the National Finance Commission. The reason for the lower than anticipated revenue receipts is thought to be the wide-ranging series of reforms introduced by the federal government according to the terms of the structural adjustment program recommended by the International Monetary Fund (IMF) beginning in 1997. The reforms included massive tax and tariff rate cuts, which caused a decline in sales tax and import duty receipts. The anticipated supply-side stimulus to the economy and the expected increase in the level of economic activity did not materialize and depressed revenue receipts further. Lower federal tax revenue receipts translated into a smaller size of the federal divisible pool and, consequently, into lower transfers to the provinces. The important point here is that the provinces have born the brunt of the economic reforms and the resulting decline in federal revenue receipts, given the substantial reliance of the provinces on federal transfers. Yet they had little say in decisions regarding the implementation of the economic reforms by the federal government. The Senate remains excluded from any economic policy-making because of the constitutional provision excluding its involvement in financial matters. The continued violation of federal principles has severely strained the national political fabric of the country.4 The failure in 1970 to arrive at an entente between Islamabad and Dhaka—the federal and the eastern wing capitals, respectively—caused the latter to break away5 in a 21-month civil war, costing thousands of lives, and leading to an invasion by India. In today’s Pakistan too, there are equally serious strains, reflected in the chronic disputes with respect to the allocation of federal revenues and development funds, the composition of federal jobs in the civil service and the military, and the distribution of water from the Indus River system. Ensuring that Pakistan is a truly federal state will require three major amendments to the constitution. One, it would require the abolition of the Concurrent List so as to substantially enhance the residuary jurisdiction of the provinces. Two, it would require the granting of equal legislative powers, including jurisdiction over money bills, to the Senate and the National Assembly. And three, it would require a redistribution of fiscal powers and the provincialization of certain tax bases. Above all, however, it is imperative for the constitution to remain in force as the Basic Law of the land and for the military to remain subservient to the constitutional government. 4. Sources for Further Information Ahmed, Syed Jaffer, Federalism in Pakistan: A Constitutional Study, Karachi: Pakistan Study Centre, University of Karachi, 1990. Ahsan, Aitzaz, The Indus Saga and the Making of Pakistan, Karachi: Oxford University Press, 1996 Constitution of the Islamic Republic of Pakistan, Islamabad: Government of Pakistan, 1973. Imtiazi, I.A., “Organization Structure and Working of the Federal and Provincial Government in Pakistan”, in Jameelur Rahman Khan (ed.), Government and Administration in Pakistan, Islamabad: O & M Division, Government of Pakistan, 1987. Social Democratic Movement, Charter of Reforms, Islamabad, 1997. Notes * The authors are grateful for the excellent research assistance provided by Ms Zainab Dossa in preparing this paper. 1. The state of Jammu and Kashmir had a Muslim majority, but was ruled by a Hindu king. At the time Pakistan and India were moving towards independence, the people of Jammu and Kashmir were engaged in a revolt against the tyrannical king. They sought Pakistan’s support in their struggle, while the king sought Indian support. Within days of achieving independence, India and Pakistan sent their forces and a war ensued. India took the matter to the United Nations, which ruled that the matter of accession to Pakistan or India should be decided by a plebiscite to ascertain the views of the people. 2. The military regime of General Zia ul Haq agreed to transfer power to Parliament (elected under military supervision and control and on a non-party basis) on the condition that it enact the Eighth Amendment to the constitution. The amendment procedures specified in Part XI, Articles 238-239, were duly followed, albeit under duress. The Constitution (Eighth Amendment) Act, 1985, altered over 65 clauses of the constitution and provided immunity to all executive actions of the military regime over 1977-1985, validated all laws promulgated during this period, and granted the President the power to dissolve Parliament and dismiss elected governments at will. The laws validated include some of the most retrogressive religious laws, with adverse impacts on women and religious minorities. The power to dismiss ensured that no elected government managed to complete its term. 3. At face value, the military took over because the Prime Minister dismissed the Army Chief of Staff and the military took an affront at this act of civilian impudence. The underlying reason was the growing rift between civilian and military powers over the sharing of the shrinking economic and fiscal resource base. 4. As early as 1955, the central government forced the merger of all the provinces in the western wing to form the province of West Pakistan. There were now only two provinces of West Pakistan and East Pakistan, each comprising 44 and 56 percent of the population, respectively. However, the constitution enacted in 1956 forced East Pakistan to accept parity with West Pakistan with regard to representation in the unicameral Parliament, thereby destroying the essence of federalism. 5. In 1969, the West Pakistan province was dissolved under pressure from East Pakistan and the erstwhile provinces in the western wing were restored. General elections were held in 1970 on the basis of one-man-one-vote; thereby acknowledging the 56 per cent majority of the province of East Pakistan. The leader of the Awami League of East Pakistan, Shaikh Mujib ur Rahman, won all but two seats in East Pakistan and, consequently, a majority in the new Parliament. However, the military refused to hand over power, cancelled the scheduled parliamentary session, and launched a brutal crackdown on the Awami League. The crackdown in March 1970 led to a civil war, which ended in December 1970 with the Indian invasion and declaration of the independent state of Bangladesh