Pakistan: A majority-constraining federalism

Mohammad Waseem

Abstract

Underlying Pakistan’s three experiments with a federal arrangement in the form of the 1956, 1962 and 1973 Constitutions, there has been a persistent concern about constraining the numerical majority of the largest province, first East Bengal and later Punjab. The first two Constitutions had virtually eliminated the federal principle in West Pakistan by merging the four provinces and various princely states into one mega-province called One Unit in order to establish parity between the two wings of the state. In post-Bangladesh Pakistan, while the 1973 Constitution provided a strong Centre and scant provincial autonomy, it tacitly acknowledged the linguistic majorities of the four provinces as legitimate representatives of their respective federating units. Together, these developments brought the issue of provincial autonomy to centre-stage in Punjab-dominated national politics, championed by the three smaller provinces of Sindh, Balochistan and Khyber Pakhtunkhwa. Thirty seven years after the promulgation of the 1973 Constitution, the 18th Amendment finally addressed this issue with full strength. Pakistan in the following decades is expected to experience what by all means is going to be a tempestuous process of shifting several ministries and divisions from the federal to provincial capitals. There can be resistance from the army and the centralist bureaucracy against the perceived dilution of state authority on the one hand and ‘minorities’ from the three smaller provinces against their perceived persecution at the hands of the majority communities of these provinces on the other.

Introduction

Federalism in Pakistan has been underscored by a situation of one-province-dominates-all — East Bengal in the first phase (1947-71) and Punjab in the second phase (1971 onwards). In the former case, the One Unit comprising all provinces and states of West Pakistan was put together in order to constrain the majority of East Pakistan by establishing inter-wing parity for representation in the national legislature. In the latter case, bicameralism was the answer to Punjab’s demographic preponderance, with a provision for equal representation of all the four provinces in the upper house, the Senate. Pakistan was ruled by a unitarian setup under both the 1956 and 1962 Constitutions. The 1973 Constitution finally provided a federal Constitution in the wake of the strident ethno-nationalist movements in three provinces: Sindh, Khyber Pakhtunkhwa (formerly North West Frontier Province or NWFP) and Balochistan. It gave a new political identity, historical depth and cultural expression to the respective ethnic majorities of these ‘minority’ provinces. However, it also alienated their sub-ethnic minorities, Urdu-speaking, Hindko-speaking and Pashto-speaking communities respectively. All along fiscal federalism took the shape of a progressive march towards determining the share of resources between the Centre and the provinces. The 2010 18th Amendment represented a major breakthrough by transferring various legislative subjects from the Centre to the provinces. Pakistan is in the process of devolution of power to the provinces, regionalisation of politics and constraining the perceived Punjabisation of the state.

Pakistan has been a federation since independence, partly as the constitutional legacy of British India and partly as the result of necessity from 1947 to 1971 when it comprised two non-contiguous territorial units. Historically, the provinces had developed distinct ethnic and linguistic identities of their own as sovereign states. British India brought them and various lesser states under its imperial control, mostly directly but also indirectly. The areas ruled directly emerged as provinces, in the case of Punjab in 1849, in the case of Khyber Pakhtunkhwa emerging out of Punjab in 1901, in the case of Sindh after separation from Bombay in 1937 and in the case of Balochistan in 1970 when it graduated from the position of a chief commissioner’s province prior to its merger into One Unit comprising the whole of West Pakistan in 1955 to a fully-fledged province after the break-up of One Unit. The areas ruled indirectly by the British now included in Pakistan can be divided into four categories:

1. Princely states of Bahawalpur in Punjab, Khairpur in Sindh, and Kharan, Mekran, Lasbela and Kalat in Balochistan. These were assimilated in their respective provinces soon after partition. However, Swat, Dir and Chitral were merged into Khyber Pakhtunkhwa in 1970.
2. Federally Administered Tribal Areas (FATA) and Provincially Administered Tribal Areas (PATA) alongside the frontier with Afghanistan.
3. Azad Jammu and Kashmir (AJK), which was put together as a legal-administrative entity, with its own Constitution, legislature and Supreme Court, pending the resolution of the Kashmir dispute with India.
4. Gilgit-Baltistan, a breakaway region of Jammu and Kashmir from 1936 onwards, which remained unrepresented in the legislature of either AJK or Pakistan after partition.

The present study seeks to outline the dynamics of federalist politics in Pakistan, as successive constitutional arrangements were put in place to deal with ethnic pluralism. We shall trace the chequered history of Centre-province relations in the political, administrative and financial fields of public policy, and discuss various initiatives in Balochistan and Gilgit-Baltistan. We shall analyse the 2010 18th Constitutional Amendment, followed by the 19th Amendment, as a landmark on the route to consolidation of federalism in the country, as well as its political, economic and judicial fallout at the stage of its implementation.

We can analyse the development of federalism in Pakistan in three phases: the colonial heritage, the pre-federalisation phase (1947-71) and the federalisation phase (1973 onwards). The first phase was characterised by formalisation of a federal framework for distribution of power between the central government and the provinces in 1935. The second phase was underscored by centralisation of authority and elimination of the federal structure within West Pakistan. In the third phase, federalism bounced back and gradually moved forward in the face of formidable challenges from the centralist framework of state authority.

The colonial legacy

Development of federalism in British India took a quantum leap forward in the form of the Government of India Act 1935 that sought to accommodate the diverse regional aspirations across the Indian subcontinent through provisions for provincial autonomy. The Muslim League high command shunned the territorial conception of federalism because it did not control the Muslim-majority provinces. Punjab never had a Muslim League government. Khyber Pakhtunkhwa had a Congress government. Bengal and Sindh produced weak coalition governments, sometimes operating outside the command structure of the Muslim League. However, the Muslim League high command felt obliged to accommodate the demands of the Muslim majority provinces in order to gain their support. It passed the 1940 Lahore Resolution demanding ‘independent and autonomous states in Muslim majority areas’. On the one hand, the Lahore Resolution has been officially celebrated in Pakistan because it publicly rationalised the separatist agenda of the Muslim League for the first time, on the other it accommodated the (con-)federalist ambitions of Bengali, Sindhi, Baloch and Pashtun nationalists who interpreted it as the foundation of a new social contract among the provinces in order to become part of the new state (Waseem 1990: 518-22). Elements from the ethno-nationalist leadership claim that: (i) Jinnah envisioned confederation for Pakistan; (ii) the 1935 India Act provided no role for the Centre, and (iii) autonomous and independent provinces entered into a covenant to establish the new federation in 1947. However, according to the mainstream constitutional thinking, the supreme authority of the state after partition in 1947 devolved to two dominions in a top-down fashion rather than in a bottoms-up process. The 1940 resolution was superseded by the 1946 resolution passed during the Muslim legislators’ conference that sought to consolidate the areas covered by the former into one formidable entity. However, the resolution continued to serve as a Magna Carta for ethno-nationalists of various categories. The fact that the two wings of Pakistan were separately located on the northwest and northeast of India pushed the ruling elite towards centralisation of all meaningful power in its own hands. The Centre amassed enormous powers under Sections 9(5), 8(2), 102 and 92(A) of the 1947 Independence of India Act (Salamat 1992: 66, 68). Thus, Pakistan was born in an anomalous political situation that led to two contradictory approaches: (i) making federalism the only option for a viable form of government, and (ii) making it as toothless as possible.

 

In search of inter-wing parity: 1947-71

Pakistan faced the issue of an unbalanced federal structure from the beginning because of the demographic preponderance of the province of East Pakistan with 55 per cent of the population. The ruling elite based in the west wing, which enjoyed economic, political and administrative power, shunned the grim prospects of rendering a permanent majority position to the east wing. It pushed the agenda for inter-wing parity in terms of equal representation in parliament.

The merger of the provinces and territories of West Pakistan into One Unit in 1955 as a mega-province to achieve parity with East Pakistan served as the basis of the federation for both the 1956 and 1962 Constitutions. Punjab in general, and Commander-in-Chief General Ayub and President General Iskandar Mirza in particular, championed the cause of One Unit and steamrolled opposition from Sindh, Khyber Pakhtunkhwa and Balochistan (Afzal 1998: 227, 237-43). West Pakistan had its capital at Lahore in Punjab. In 1960, the capital of Pakistan moved from Karachi to Islamabad, also situated in Punjab. With two capitals in Punjab, the new federalist arrangements were widely perceived to be a sign of Punjabisation of Pakistan. National integration ostensibly had been the rationale behind the adoption of One Unit. Instead, it led to a fierce backlash in the form of ethno-nationalist movements in Sindh, Balochistan and Khyber Pakhtunkhwa. The erstwhile provinces of West Pakistan were restored in 1970. Balochistan was created as a full province for the first time.

Unlike in India, provinces in Pakistan were not reorganised on the basis of language. Apart from their core communities, these provinces contained large ethnic minorities, which retained provincial aspirations of their own, e.g. Pashtuns in Balochistan, Mohajirs (Urdu-speaking migrants from India) in Sindh, Seraiki speakers in south Punjab and Hindko speakers in the Hazara division of Khyber Pakhtunkhwa. The ruling elite in Pakistan found language unacceptable as a legitimate source of identity. In India, language was in but religion was out as a constitutional category (Adeney 2007: Chapter 5). In Pakistan, religion was in but language was out because of its perceived potential for political destabilisation (Rahman 1996: 249). This discounted the agenda of creating language-based provinces. The requirement for a two-thirds majority in the two houses of parliament to create a new province, in addition to the consent in the Assembly of the provinces concerned, has made the creation of a new province extremely difficult. As opposed to this, in India only a simple majority in the Lok Sabha is required to create a new province, although the opinion of the concerned state legislature must be sought.

The 21-point programme of the United Front in East Pakistan in 1954 demanded the establishment of the federation on the basis of the 1940 Lahore Resolution. In 1966, the Awami League’s six-points programme again sought to radically redefine federalism by demanding: adult franchise in a parliamentary framework; two subjects for the Centre, i.e. defence and foreign policy, along with communications; two convertible separate currencies or one currency to be handled by two separate reserve banks for the two wings; power of taxation for the provinces; right of provinces to handle foreign exchange and foreign trade, and paramilitary forces for East Pakistan. In the absence of an agreement on the quantum of provincial autonomy between the two wings and the refusal of Yahya Khan to allow the Awami League to form a government after the elections of 1971, the federation violently collapsed in 1971.

 

The 1973 Constitution

The separation of East Pakistan led to new thinking about federalism as Punjab now represented the position of one-province-dominates-all at 58 per cent of the population. The smaller provinces were committed to constraining the majority of one province in parliament. The spectre of other ethnic communities seceding from what was left of Pakistan after Bangladesh loomed large on the horizon. The elites of Sindh, Khyber Pakhtunkhwa and Balochistan pushed for some kind of majority-constraining federalism. Prime Minister Z A Bhutto, himself from Sindh, was able to accommodate the demands of the provinces for a bicameral parliament comprising a population chamber (the lower house) and a territorial chamber (the upper house). The idea was that Punjab’s majority in the National Assembly would be counterbalanced by the majority in the Senate wielded by the three smaller provinces. Provincial languages were recognised. However, only Sindh adopted a provincial language in 1973 whereby Sindhi was given the status of the official language. There was a negative fallout on Mohajirs that led to language riots, followed by decades of ethnic strife between the two communities (Adeney 2007: 141-43).

Just as the 1956 Constitution was preceded by the Murree Accord between the Bengali and Punjabi groups, the 1973 constitution was preceded by the 1972 agreement between the Pakistan People’s Party (PPP) and the Awami National Party-Jamiat-i-Ulema-i-Islam (ANP-JUI) combine (Malik 1974: 45–46). The 1973 Constitution provided for a National Assembly, where the majority belonged to Punjab, and the Senate where all the four provinces enjoyed equal representation at 19 members each, with eight seats for FATA and three for Islamabad. This so-called demos-constraining role of the upper chamber has the potential of balancing the majority of the lower house (Stepan 1999: 22–23). However, the impact of the enhanced representation of smaller provinces in the Senate was offset by the asymmetrical policy scope of the two houses. The Senate had no control over money bills. The national budget could be sent for assent of the president after passage through the National Assembly, even bypassing the other house. The 2003 17th Amendment, based on Musharraf’s 2002 Legal Framework Order, increased the membership of the National Assembly to 342, including 272 directly elected members, 60 reserved seats for women and 10 minority seats. It also expanded the size of the Senate to 100, with 22 seats for each province, eight seats for FATA and four seats for Islamabad. It became mandatory to present money bills to the Senate to get them passed by that house to become law.

The electorate for the Senate comprises Members of the Provincial Assemblies (MPAs), along with Members of the National Assembly (MNAs) from Islamabad and FATA. Being indirectly elected under the Proportional Representation-Single Transferable Vote system, Senators are twice removed from the public and thus have a low representative character. Over time, the election of Senators for six years, with half of the house elected every three years, has become a virtual ‘selection’ by the political parties through nomination of their candidates. The provision of election of eight Senators by 12 MNAs of FATA is considered farcical. Since elections for the two houses were held at different times, it was not uncommon to see the majority party in the National Assembly having a minority representation in the Senate. This frequently happened in the 1990s. After the 2008 elections, the PPP and its allies managed to get a bare majority in the Senate only after the elections were held for half of the house in 2009. Sometimes, this situation blocked legislation from moving beyond one house. This happened in the case of the 1991 Shariat Bill (the aborted 15th Amendment). During the period of diarchy (1985–99), the 8th Amendment gave the president powers to dissolve the National Assembly and thus dismiss the federal government. Successive presidents Ziaul Haq, Ghulam Ishaq Khan and Farooq Leghari exercised these powers in 1988, in 1990 and 1993, and in 1996 respectively. Both Ghulam Ishaq Khan and Farooq Leghari were able to mobilise the support of certain political parties from the smaller provinces represented on the floor of the Senate in order to counter the majority in the National Assembly led by either Benazir Bhutto’s PPP or Nawaz Sharif’s Pakistan Muslim League-Nawaz (PML-N). While the prime minister drew on the critical support of Punjab in the lower house, the president relied on the tacit support of smaller provinces in the Senate. Bicameralism, as underscored by the asymmetrical policy scope of the two houses of parliament, became enmeshed with diarchy representing tacit polarisation between the head of state and the chief executive respectively (Waseem 2008: 215-17).

The federal structure of the 1973 constitution exacerbated ethnic conflict by creating de jure recognition of core linguistic communities identified with their respective federating units. Thus, Sindhis, Punjabis, Pathans and the Baloch got their ‘homelands’ legally acknowledged as federating units of Pakistan under their respective provincial governments. However, such ‘legal’ elevation of ethnic groups representing majority communities in these provinces, such as Sindhis in Sindh, in turn disenfranchised minority groups such as Mohajirs in that province. In other words, the federal project consolidated the Sindhi identity and within a decade and a half created a Mohajir ethnic identity (Khan 2010: 5-7, 14-15). With the introduction of a quota system along ethno-regional lines, extended to rural and urban sectors in Sindh corresponding to the Sindhi and Mohajir communities, federalisation discriminated against merit and further exacerbated ethnic consciousness among Mohajirs (Waseem 1999: 459).

Juridical equality of the federating units in the Senate substantially enhanced the visibility and authenticity of ethnic majorities in the provinces. Bicameralism itself is no guarantee of equitable distribution of resources nor of equality of federative representation (Linz 1997: 5-6). Indeed, the likelihood of federalism to increase secession has been noted elsewhere (Adeney 2007: 2). Federalism does not provide the route to democratisation. Pakistan remained a federation under military rulers. It was General Yahya who dissolved One Unit and restored the four provinces of West Pakistan that laid the foundation for the 1973 Constitution. Federalisation is not democratisation (Linz 1997: 3-4). The argument of a ‘prefectorial federation’ in India is based on the Centre’s power to stultify provincial autonomy, intrude into the legislative domain of the provinces sometimes through pre-emptive action and put provincial legislation on hold in certain cases (Rajashekara 1997). In Pakistan, the Centre operated in an even more penetrative and commanding way. However, the weakness of the mainstream federal parties the PPP and PML-N vis-à-vis the army has opened up space for their coalitional partnerships with ethno-regional parties that make it possible to slacken the hold of the Centre over the provinces under a democratic dispensation. India’s experience with coalition governments based on the support of regional parties has resulted in a similar trend.

 

Centre-province relations

The federal issue in Pakistan is rooted in the persistent crisis of Centre-province relations. A profile of Punjabisation of the state underscores the demand for provincial autonomy in the three smaller provinces (Khan 2001: 884–89). At issue has been the administrative and financial decentralisation that led to pressure for transferring various powers from the Centre to the provinces and raising the latter’s share in the national exchequer.

Division of powers

From the 1935 India Act onwards, the heavy pro-federation bias in the division of subjects has characterised all constitutional arrangements. The profile of legislative subjects has shifted from three lists (federal, provincial and concurrent) in 1935 and 1956, to one list (federal) in 1962 to two lists (federal and concurrent) in 1973, with residual powers lying with the provinces (1962, 1973). The Centre penetrated deep into the domain of the concurrent list. Provinces sought to remove this list because the Centre would always prevail over them in a case of conflict. The federal bias comprehensively defined the taxation structure. However, a long-term trend in favour of provincial subjects has been visible (Ahmed 2007: 71-78, 102). The 18th Amendment of 2010, discussed in more detail later, empowered the provinces to raise loans at home and abroad, and issue security guarantees on the provincial consolidated fund. In an innovative measure, it provided for joint and equal ownership of the mineral wealth found in a province or its adjacent waters by the Centre and the province. Also, it gave the sales tax on services (but not on commodities) to the provinces. The Amendment abolished the concurrent list in principle and transferred 40 of its 47 subjects to the provinces.

The intrusive role of the Centre vis-à-vis the provinces has operated in the domain of the appointment of governors, high court judges and the higher bureaucracy. Constitutional federalism has been effectively countered by bureaucratic centralism. In 1948, the civilian bureaucracy was centralised on an all-Pakistan basis. The federal government controlled recruitment, training, posting, transferring, promoting and demoting of officers. Contrary to the older pattern of recruitment of civil servants under the ICS in British India on the basis of a provincial cadre, the civil bureaucracy in Pakistan was recruited on the basis of a federal cadre. This remained a hotbed of controversy whereby provincial governments felt helpless in the face of a centralist bureaucracy that managed the affairs of the provinces of their posting by giving priority to the interests of the Centre.

 

Fiscal Federalism

Fiscal federalism has taken a few meaningful steps forward. Article 153 of the 1973 Constitution provided for the Council of Common Interests (CCI) to take care of disputes between the Centre and a province or amongst provinces. It is sometimes understood to be a quasi-executive body because it comprises the prime minister and chief ministers of the provinces and their representatives. The CCI is powerful in theory but weak in practice. Procedurally, settlement of disputes often becomes a function of relations between the two or more parties involved in the dispute. The meetings of the CCI are few and far between. This makes the CCI ineffective as an institutional mechanism for conflict resolution. The 18th Amendment provided for periodical presentation of the CCI report to both houses of parliament. It extended the membership of CCI by adding three federal cabinet members, made its quarterly meetings mandatory, provided for a permanent secretariat and expanded its mandate to include supervision and control over related institutions. These changes potentially increase its importance, but it remains to be seen how it will operate in practice, and whether it will become bogged down in disputes between the Centre and the provinces.

The revenue-raising authority is largely in the hands of the federal government at around 93 percent, with its expenditure at 72 percent, while the provinces raise only seven percent of the revenue but spend 28 percent of it. The resource transfer paradigm has been a constant source of tension between the federal and provincial governments. A systemic method of transfer is operative through the National Finance Commission (NFC) constituted under Article 160(1) of the Constitution. Its charter includes distributing tax receipts, issuing random transfers such as grants and recommending the borrowing of funds. From the Niemeyer Award issued under the 1935 India Act and the Raisman formula of 1947, several awards have been issued to streamline the share of the divisible pool of tax receipts, essentially on the basis of population. Awards issued under military governments, in 1961 and 1964 under Ayub, in 1979 and 1985 under Zia, and in 2000 and 2006 under Musharraf failed to develop a consensus amongst the provinces, and were thus deadlocked (NFC Award, nd). But the 1974 NFC Award under Z A Bhutto and the 1991 and 1996 NFC Awards under Nawaz Sharif were based on consensus. The latter increased the share of the provinces from 28 percent to 45 percent of the federal tax revenue. Of the provinces, Punjab got 57.88 percent, Sindh 23.28 percent, NWFP 13.54 percent and Balochistan 5.30 percent (Ahmed et al. 2007: 8, 12, 19).

In 2006, after the NFC failed to reach a consensus, President Musharraf declared the provincial share at 45 percent, with a one percent increase per annum up to 50 percent in five years. A major breakthrough came in 2009 when the NFC Award increased the provincial share of the divisible pool from 47 percent to 56 percent for 2010-11 and to 57.5 percent for the following four years. The new criteria for the NFC Award included: population 82 percent, poverty 10.30 percent, revenue generation five percent and inverse population density 2.7 percent. The NFC Award changed the ratio of distribution of resources to the provinces: Punjab 51.74 percent, Sindh 24.55 percent, NWFP 14.62 percent and Balochistan 9.09 percent (NFC Award, nd: 4). By far this has been the most progressive step in the direction of fiscal federalism. It decreased the share of Punjab, almost doubled the share of Balochistan and expanded the criteria for the NFC Award. Later, the 18th Amendment provided for: (i) prior consultation of the federal government with the government of a province where a hydro-electric power plant was to be established; (ii) the provinces’ share to be not less than in the previous NFC Award; (iii) biannual monitoring of implementation of the NFC Award by the federal and provincial finance ministers, and (iv) presentation of reports to the National and provincial Assemblies respectively.

The issue of distribution of water has often led to mistrust between the provinces. In 2009, Punjab made a plea to the Indus River System Authority (IRSA) for running the Chashma-Jehlum link canal because of the risk of laying waste three million acres in the cotton growing region. However, IRSA kept the canal discharge at 5,000 cusecs against the demand for 18,000 cusecs. Earlier, IRSA had reduced the water release to Punjab from the Taunsa-Panjnad canal from 14,000 cusecs to 3,000 cusecs. At its end, the Sindh Assembly debated the issue that the province got far less water than it was allotted under the 1991 Accord, i.e. 48 million acre feet that had rendered one million hectares of land barren. It was claimed that Punjab brought an additional 3.5 million hectares of land under cultivation. On its part, Punjab pulled its representatives from attending the meetings of IRSA in May 2010. In its view, IRSA was bent on damaging the province and the federation. It criticised IRSA for indulging in the worst kind of figure fudging and also for not releasing 5,000 cusecs of water into the Chashma-Jehlum link canal out of its share, and thus violating the 1991 Accord that allowed control over internal distribution of water to the provinces. Since river and canal water remained the lifeline of the two predominantly agricultural provinces, their respective political leaderships invoked the spirit of federalism to justify their respective claims to water. The closely related issue of building the Kalabagh Dam on the River Indus has put the federation under great pressure. While the federal and Punjab governments often supported the project, the Sindh, Balochistan and NWFP Assemblies passed resolutions against the Kalabagh Dam. Political parties have been internally divided along provincial lines on this issue.

 

Balochistan

In 2009, the PPP government presented a package of reforms for Balochistan. The province had been in a state of political turmoil since 2005. A military operation in and around the areas of the Marri and Bugti tribes led to alienation of Baloch nationalists from the federation and stoked separatist ambitions among them. In the background of the Baloch nationalist struggle during the six decades after partition, new pressures on the federation came to a head after the murder of Nawab Akbar Bugti in an ambush in 2006 (Jetly 2009: 213-16). Parliament initiated a process of dialogue with the Baloch leadership in 2007. The Report of the Sub-Committee on Provincial Autonomy in March 2007 and the Report of the Parliamentary Committee on Balochistan in November 2007 highlighted various issues and made several policy recommendations. The first report pointed to the need for constitutional amendments for transfer of subjects from the federal to the concurrent list and from the concurrent to a proposed provincial list, as well as legislative measures to frame new rules for the CCI, Public Accounts Committee (PAC), National Economic Council (NEC) and Inter-Provincial Coordination Committee (IPCC). It suggested confidence-building measures such as upgrading the universities, airports, hospitals and public schools to international standards (PILDAT 2009b).

The second report focused on payment of part of the gas and oil revenue receipts to the district concerned and local representation on the board of Pakistan Petroleum Limited (PPL), Oil and Gas Development Company (OGDC) and Sui Southern. It asked for a formula regarding royalty and gas development surcharge to Balochistan, including huge arrears of royalty. It demanded implementation and expansion of the job quota to the armed and civil armed forces, shifting of the headquarter of the Gwadar project from Karachi to the port itself, provision of share for Balochistan in employment, revenue, training and educational facilities for the youth, and relocation of displaced fishermen. It sought an inquiry into lands in Gwadar district, announcement of the much delayed NFC Awards, and control and regulation of the operational jurisdiction by the Frontier Corps (FC) and Coast Guards. The report pointed to the need for stopping the construction of military cantonments, which were resented as part of the perceived agenda of the Punjab-dominated armed forces to subjugate the Baloch people (PILDAT 2009a).

 

The reform package

The reform package called Aghaz-e-Haqooq-e-Balochistan (Beginning of the Rights of Balochistan) was presented to the joint sitting of the two houses of parliament on November 24, 2009. It built on the previous reports and the government’s goodwill measures such as the payment of Rs 2.8 billion in arrears of royalty for gas pending from 1995 and writing off the overdraft of Balochistan worth Rs 17.5 billion. It addressed the issue of ‘missing persons’, i.e. Baloch nationalists in the alleged extrajudicial custody of the security agencies. The package recommended the repeal of the concurrent list, rationalisation of the operations of the CCI and NFC, withdrawal of army units from the Sui area and halting the construction of cantonments, as well as establishing provincial control over the Frontier Corps and Coast Guards. It upheld the previous recommendations about Gwadar, local representation in corporate management, the need for a special development package for the province, payment of arrears in gas royalty amounting to Rs 120 billion for the period from 1954 to 1991 payable in 12 months, transfer of a substantive share in the Saindak project and employment opportunities for the Baloch (Full Text of Balochistan ‘Package’, 2009).

The package on Balochistan was criticised on several grounds. It failed to address the public demand of shifting the head office of the Gwadar project from Karachi to the city itself. The Baloch nationalist leaders in exile summarily rejected Islamabad’s new initiative as a cruel joke with the people of Balochistan. They were sceptical of the ability of the civilian government to deliver on its commitments in the face of the real power holders in the form of the military establishment. At the other end, the mainstream opposition party the PML-N as well as ethnic parties such as ANP generally appreciated the package. Various progressive elements remained cautiously optimistic about the reform package.

Gilgit-Baltistan: informal federalism

In September 2009, the PPP government issued an autonomy package for the Northern Areas. It renamed the area Gilgit-Baltistan, and provided it a province-like status. The area represents a political and constitutional anomaly. As a historical part of Kashmir in the context of the 1948 UN resolution, the area cannot be incorporated in the national framework pending the resolution of the larger dispute between India and Pakistan. People from Gilgit-Baltistan do not want to go back to the fold of the larger entity of Jammu and Kashmir after the region was leased to British India by the Maharaja in 1936, followed by a unilateral declaration of accession to Pakistan by the local administrator of Gilgit, Major Brown, in 1947. In the face of incessant pressures for autonomy from the local population, the government issued a series of reforms for the area. As opposed to Azad Jammu & Kashmir (AJK), which has its own constitution, parliament and judiciary, this region was ruled by decree, most recently under the 1994 LFO (UNPO, nd: 1). The demand for autonomy is, however, not separatist but integrationist in nature, inasmuch as people want a full provincial status for themselves as part of the federation of Pakistan. Being rich in natural resources such as water carrying substantial hydroelectric potential, with the current Bhasha-Diamer dam project in place, and being situated on the strategic route to China, the importance of the region is widely acknowledged (Khan 2009). If and when Gilgit-Baltistan becomes part of the federation, it will be the only Shia province of the predominantly Sunni state of Pakistan. During the past quarter of a century, the region has undergone a process of fierce ‘Sunnification’.

 

The 2009 Order

The Gilgit-Baltistan Empowerment and Self-Governance Order 2009 changed the name of the region, provided for a Chief Minister as leader of the Legislative Council, a Public Services Commission, Chief Election Commissioner and Auditor General. A woman was appointed as governor. The PPP won the elections held under the new framework and formed the government. The Order was challenged in the Supreme Court with a plea to declare it ultra vires of the Constitution on the ground that it negated the right to self-rule and independent judiciary for the region. Across the border, India lodged a protest with Pakistan against the package for a region that was considered by Delhi to be under Pakistan’s illegal occupation. It criticised the statement of the new chief minister of Gilgit-Baltistan that the region had become the fifth province of Pakistan (The Hindu, 2010). Similarly, AJK’s political leadership did not countenance the perceived forward march of Gilgit-Baltistan towards autonomy that would potentially undermine its claim over the territory. It is widely believed that Pakistan is indirectly and informally integrating the region in the mainstream political and administrative system (Sering 2009: 1).

The 18th Constitutional Amendment

The 18th Amendment passed in April 2010 was billed as the most comprehensive reform package after the passage of the 1973 constitution. Ever since the return of civilian rule in 2008, there was a popular demand from the whole spectrum of the political leadership to repeal the 17th Amendment passed under Musharraf and reform the Constitution in the light of the 2006 Charter of Democracy. This Charter represented a broad political agenda sponsored by Benazir Bhutto and Nawaz Sharif among others. The Charter became a reference point for the pro-democracy activists during the 2007-09 anti-Musharraf movement.

 

The Charter of Democracy

The Charter of Democracy provided the work plan for the special Parliamentary Committee for Constitutional Reform (PCCR). The two mainstream parties, PPP and PML-N, along with other parties, signed the Charter in London in May 2006. The Charter demanded an end to the presidential powers of dissolution of the National Assembly and appointment of governors, armed services chiefs and the Chief Justice. It also demanded: abolishing the concurrent list; issuing a new NFC Award; expansion of the Senate to give representation to minorities; integration of FATA with Khyber Pakhtunkhwa; empowerment of Gilgit-Baltistan; lifting the ban on assumption of the office of prime minister for the third time as well as establishing a Truth and Reconciliation Commission and a National Democracy Commission. It sought accountability of the Inter-Services Intelligence (ISI), Military Intelligence (MI) and other security agencies to the elected government; removal of indemnities introduced by military governments; appointment of the higher judiciary through a commission chaired by a chief justice who had never taken oath under a Provisional Constitutional Order (PCO), and establishing a Federal Constitutional Court in order to resolve constitutional issues with equal representation of all the federating units. The Charter was hailed as a virtual Declaration of Independence.

The 27-member PCCR under Senator Raza Rabbani represented all parliamentary parties. Only nine members belonged to the three mainstream parties, PPP, PML-N and Pakistan Muslim League-Quaid-i-Azam (PML-Q), while 18 belonged to ethnic parties from the smaller provinces as well as Islamic parties. Thus the composition of the PCCR was very progressive in terms of representation of all the provinces and provincial autonomist parties operating on the floor of parliament. President Zardari was in a unique position to champion the cause of provincial autonomy because his election as head of state in September 2008 drew on an absolute majority of legislators from the three minority provinces of Balochistan, Sindh and Khyber Pakhtunkhwa.

Salient Features of the 18th Amendment

The PCCR received 982 proposals from the public and spent 385 hours on its deliberations. In the process, it expanded its agenda beyond the Charter of Democracy and dealt with various other controversial matters. The 18th Amendment made almost 100 changes, including:

1. Abolishing the concurrent list in principle, transferring the residuary powers to the provinces;
2. Restoring parliamentary sovereignty by repealing Article 58(2)(b);
3. Expanding the jurisdiction of the Political Parties Act to FATA, thereby encouraging political 
parties to field their candidates from that region in future elections;
4. Making CCI a more substantive body;
5. Restricting the space for issuing presidential ordinances;
6. Providing for the Chief Election Commissioner’s appointment on the basis of agreement between the government and the opposition
7. Establishing a Judicial Commission comprising seven members, including four judges, the law minister, the attorney general and a representative of the Supreme Court Bar Association; and
8. Renaming NWFP as Khyber Pakhtunkhwa.

Lesser voices represented various unresolved but lingering issues that failed to win a consensus of the PCCR. For example, ANP demanded election of the president on a rotational basis from all federating units, starting with the smaller provinces. Muttahida Qaumi Movement (MQM) demanded creation of a few seats in the federal and provincial Assemblies for overseas Pakistanis through amendments in Articles 51 and 106. Jamaat-i-Islami demanded that the president not exercise his power of clemency in cases relating to Hudood or Qisas laws. Pakhtunkhwa Milli Awami Party (PKMAP), the Pakhtun nationalist party in Balochistan, wanted a separate chief commissioner’s province called Khyber Pakhtunkhwa Southern to be carved out of Balochistan, and renaming of FATA as Khyber Pakhtunkhwa Central (PCCR Report 2010). These demands were added as appendices to the main report called ‘notes of iteration’. In the absence of agreement on these points, the members of PCCR did not press them beyond registering their demands in the interest of building a consensus.

 

Political response

Two critical perspectives surfaced even before the passage of the bill into law. The PML-N leader Nawaz Sharif objected to the composition of the Judicial Commission and renaming of NWFP. PCCR accommodated him on both counts by including a fourth judge in the Judicial Commission as a direct nominee of the Chief Justice and adding Khyber to the name Pakhtunkhwa. However, both issues later sparked a wave of protest. Renaming of NWFP laid out the turf for a demand for new provinces. Traditionally, this demand was underlined by ‘administrative’ reasons such as good governance in the backdrop of demographic pressure, geographical diversity and strategic requirements. After passage of the 18th Amendment, some political parties asked the federation to reinvent itself by creating new provinces, such as four out of Punjab, two out of Khyber Pakhtunkhwa, two out of Sindh and three out of Balochistan. Nawaz Sharif preferred administrative rather than linguistic provinces. Prime Minister Gilani gave a positive nod to the demand for a Seraiki province in south Punjab, his own area, but thought that this was not the right time for it. President Zardari was not sure about the political fallout of such a move and settled for a wait-and-see policy. While the ongoing federalising process in India operates as a vehicle of accommodation and management of ethnic identities within the framework of multiculturalism if and when the ethnic electorate can make a formidable demand for recognition (Bhattacharyya 2004: 178–79), language as an instrument of federalisation is far from being acceptable in Pakistan.

Critics of the 18th Amendment also pointed to the failure of PCCR to meet the agenda of the Charter of Democracy. For example, it did not provide for a Federal Constitutional Court, merger of FATA in Khyber Pakhtunkhwa, an independent accountability commission to replace the National Accountability Bureau (NAB), and accountability of ISI and MI to civilian authority. Some claimed that the 18th Amendment, much like the 1973 Constitution itself, did not provide for an independent Election Commission, an independent judiciary, an independent commission for accountability and a mechanism for a third tier of government at the local level. The lobby for provincial autonomy, especially in Sindh, criticised the Amendment for completely ignoring the Senate in terms of power sharing. It made the NEC unrepresentative of the federation by giving the prime minister the power to nominate four members on his own instead of providing for representatives of the four provinces. It retained Article 62 that carried the Islamic provisions for eligibility of electoral contestants and thus alienated religious minorities and secular-minded people in general. The Amendment diffused the demand for provincial autonomy more than addressed it frontally, averting the reopening of the thorny issues of administrative and fiscal decentralisation (Halepoto 2010).

 

Administrative response

Official circles objected to what they considered to be dismantling of large parts of the federal government by depriving it of legislative powers through abolition of the concurrent list. There were fears about the absence of a modus operandi for shifting various ministries from the Centre to the provinces and the problem of implementing 35 international protocols dealing with subjects ranging from the environment to quality of life. All the four provinces developed differences with Islamabad over the latter’s continuing use of the Workers’ Welfare Fund and the Employees’ Old Age Benefits Institution on a media campaign regarding the PPP government’s project Benazir Employees Stock Option Scheme (Dawn, June 22, 2010).

For implementation of the 18th Amendment regarding transfer of ministries from the federal to provincial governments before June 30, 2011, some recommended that the PCCR should remain in charge while others proposed a ‘devolution commission’. Finally, the government constituted a nine-member Implementation Commission for Constitutional Reforms (ICCR) headed by the PCCR Chairman. ICCR took up the task of implementing the policies, decisions and directives, reviewing laws, rules and regulations, and monitoring the administrative mechanism to bring about the transition in the federal structure.

 

Legal and judicial response

Article 175A of the 18th Amendment provided for a majority of judges in the Judicial Commission as well as an eight-member parliamentary committee with equal representation of the treasury and opposition benches from the two houses of parliament for confirmation of the Commission’s nominees as judges. Sections of lawyers, jurists and the media felt that the Commission superseded the Chief Justice for appointment of judges. Sixteen petitions were filed in the Supreme Court against the Amendment in the midst of a nationwide speculation about whether the judiciary would declare the Amendment unconstitutional. The Supreme Court elicited the comments of provincial governments on the case. Punjab and Khyber Pakhtunkhwa governments requested the court to dismiss the petition straightaway. However, a situation of tussle between the courts and parliament emerged, somewhat along the lines of a similar conflict in India in recent decades. The hearing of the petitions polarised legal opinion. Some accused the judiciary of struggling to secure the discretion of the Chief Justice for appointment of his colleagues, while others found it a test case of independence of the judiciary. The latter pointed to the absence of parliamentary oversight in the UK in the matter of appointment of judges as a model. Others suggested that only parliament was the right institution to decide about the most suitable configuration to decide the mode of appointment of judges. The controversy about whether the current parliament being Constituent or not was criticised as a hollow attempt on the part of the petitioners and the judiciary to undermine the sitting legislature. The relevant legal and judicial quarters were divided on whether parliament was the creation of the Constitution or the Constitution was the creation of parliament. Since the 18th Amendment was passed by consensus, federalism faced a formidable challenge at the hands of the judiciary during its finest hour for nearly four decades.

In its verdict, the Supreme Court referred the controversial provisions relating to the appointment of judges back to PCCR for review. Accordingly, the latter deliberated on the 19th Amendment that was later passed by parliament and notified as an Act on January 1, 2011. The federalist provisions of the 18th Amendment remained intact. When the process of transfer of ministries from the federal to provincial capitals started, there was a lot of confusion about the continuation of certain federal divisions even after the new divisions were established in the provinces. This situation created a duality of functions and a burden on the national exchequer. Baloch nationalists remained sceptical about the sincerity of purpose behind the whole move of transfer of subjects to the provinces. They did not see any comprehensive change of policy on the political horizon pursuant upon the provisions and commitments of the Balochistan initiative of the PPP-led government in Islamabad. The profile of Punjab’s dominance over the federation was by no means diminished in the absence of a meaningful expansion of the recruitment base of the two state apparatuses of the army and bureaucracy.

 

Conclusion

Our observations in this article point to the historical, legal, institutional and moral sources of legitimacy for the structural and operational dynamics of federalism in Pakistan, as opposed to the inherently centralising tendency immersed in the nation-building agenda. Federalism in Pakistan has a history of forward movement under civilian rule (1973-77, 1988-99 and 2008- ) and a retrogressive march under military-led governments (1958-71, 1977-88 and 1999-2008). The former tends to be populist and consensus-based. The latter looks at federalism as a recipe for dilution of state authority. However, federal governments under both civilian and military set-ups showed a tendency to control the purse and policy at the cost of the provinces. Federalism as a symbol of shared sovereignty remains somewhat elusive, even as Pakistan has gradually moved towards relative liberalisation of the principles of coordination and cooperation among and between the provinces and the Centre.

In the year 2011, the quality of federalism in Pakistan could be measured with reference to both innovative steps forward in the domain of law and policy and a lack of firmness in the direction and implementation of reforms. At one end, federalism moved to the centre of the political discourse and public policy. At the other end, the legal-institutional structure of the state operated as a bulwark against what was perceived to be the dilution of its authority. However, there is an unmistakable move forward to serious consideration of the agenda of federalism under the current democratic dispensation. The transfer of ministries in step with the shift of legislative subjects from the Centre to the provinces is expected to lay down an institutional basis for ethnic pluralism and fiscal decentralisation.

 

Acknowledgement

This article was made possible by a grant from the Pakistan Programme of the Forum of Federations, which is supported by the German Foreign Office.

 

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Dr. Mohammad Waseem is at HSS Department, Lahore University of Management Sciences, Pakistan.

Email: waseem1007@hotmail.com