THE question whether the provinces, or the federating units as they should be called, are subordinate to the federation has been at the centre of one of the more important public debates going on these days. The issue touches upon matters related not only to the future of the federation but also the state’s integrity. Last month, the Supreme Court observed, while hearing a case about measures taken to deal with Covid-19, that the provinces were bound by Article 149 (4) of the Constitution to follow the federation’s directions. The implications of the Supreme Court’s observation will of course be debated in due course.
However, it may be relevant to recall that the provisions of the Constitution that allow the federation to issue directions to provincial governments had their origin in the colonial scheme of centralised rule designed under the Government of India Act of 1935. Put under the side-subheading, “Control of Federation over Provinces in certain cases”, the relevant section empowered the federation to issue directions to provinces in specific situations, such as anything impeding or prejudicing the exercise of the federal authority, or a matter concerning the means of communication of military importance, or a direction about the manner in which a province should exercise its authority for preventing a grave menace to the peace or tranquility (or economic life) of Pakistan.
While retaining Section 126 of the Act of 1935 as Article 149, the authors of the 1973 Constitution seem to have broadened the scope of federal directions. At some stage, it will be necessary to examine whether the federal directions could only demand compliance with the law or would command actions to be taken in a specific manner, which will be an order and not a direction. It will also be necessary to consider whether the idea of “Control of Federation over Provinces in certain cases”, invented for the convenience of a colonial regime is at all compatible with a genuinely federal order.
Meanwhile, the main opposition party in the Sindh Assembly has been calling on the federation to take extreme measures against the provincial government and the implication is that the federating units are subordinate not only to the centre but also to the governors. Acceptance of this misconception about the subordinate position of the provinces is fraught with dangerous consequences.
The provincial assemblies created Pakistan, they are not the creatures of the federation.
Pakistan’s greatest tragedy is that forces favouring a highly centralised state structure prevented it from becoming a proper federation. Nobody can deny the fact that Pakistan is a multinational and multicultural state and that the provinces are not mere administrative divisions; they are homelands of communities with their distinct histories, cultures and languages. That such a state had to be a federation was realised by the authors of the Lahore Resolution of 1940 who promised autonomous and sovereign status to the constituent units. It is possible that without this pledge the resolution could not have been adopted. Further, the Quaid-i-Azam rejected the federal part of the Act of 1935 because it envisaged an all-powerful centre.
However, within a few years of independence, the ideal of a federation was smothered by a strong alliance of the upholders of the viceregal system, a power-hungry central bureaucracy, a conservative religious lobby, and a succession of men on horseback. The way Article 92-A was inserted into the provisional constitution, and its use to demolish provincial governments, constitute a regrettable chapter in the history of Pakistan. Although Section 92-A was replaced with Section 93 in 1955, which considerably reduced the arbitrary nature of actions against the provincial governments, federal inroads into provincial autonomy continued till the 1980s. A federation in name, the country was run as a unitary state and its dismemberment was the price paid for this folly.
The problem all along was the centre’s treatment of the provinces as its colonies — like subordinate entities; they were ruled by centrally appointed bureaucrats, and their very existence as provinces was negated. It was only after 63 years of independence that, under the 18th Amendment, the first, though substantial, step towards giving the provinces their due was taken. The provinces were allowed due powers to make laws that the concurrent list had virtually denied them, their minimum share of the divisible resources was fixed, and the role of the Senate, the symbol of federalism, was somewhat increased. The amendment also made the establishment of a local government system mandatory. But the process of empowering the federating units has yet to go several steps forward.
That the provinces are not subordinate to the federation can be proved by theory and contemporary practice both. More than 100 years ago, A.V. Dicey, the famous British jurist and constitutional theorist, defined the federating units as coordinates of the federation. Even if modern rulers are allergic to the old theory, they can see its part in the uninterrupted functioning of such leading federations as Switzerland, the US, Germany and Australia. They have progressed by not treating federating units as subordinates.
Further, unitary states are discovering sources of national strength and economic progress in devolving power to regions. Decentralisation and devolution of power from the centre to the provinces, and from provinces to local governments, has become vital for good governance. The UK is just one example.
In Pakistan’s case, the provinces’ right not to be treated as subordinate to the federation lies in the fact that the provincial assemblies created Pakistan; they are not the creatures of the federation. After giving the units their due, the federation will become a smart polity, its non-productive expenditure will come down, the feeling of alienation among communities and nationalities constituting the federal units could die out and Pakistan could become stronger and be at peace with itself.
Pakistan’s future lies in having more of democracy and more of federalism and any attempt to revert by force to an over-centralised state structure will not work. It will be the shortest route to suicide.