'New' federation - I

ZA Bhutto while addressing the Constituent Assembly on 10 April 1973 as its President said: "The point of view that each and every federating unit must be party to the federal constitution applies when the States are sovereign and independent and when the sovereign and independent states want to shed part of their sovereignty and become a part of a national entity. It does not hold good for a State which is already a nation and have provinces within it".
The Constitution of 1973 was a great achievement of our mature political leadership. Led by ZA Bhutto, Wali Khan, Mufti Mehmood, Professor Ghafoor, Shah Ahmed Noorani, Mir Ghaus Baksh Bizenjo and many others they debated and adopted the constitution, which envisaged a strong federation. A constitution is a political document and therefore it contains compromises. Its efficacy is judged over a long period particularly when it is a federal constitution. The efficacy of the US constitution, that was the first federal constitution, was tested and proved during the civil war when the southern states attempted to secede. The British North America Act, 1867 has kept the French and English speaking people and areas together more than 150 years. Australian constitution of 1901 has also accommodated various interests.
Fundamental rights are the soul of a constitution. If these inalienable rights are respected, honored and enforced then mistrust, misgivings, personal biases and prejudices vanish. George Washington did not like politicians. Thomas Jefferson had a huge disliking for John Marshall despite being closely related. Jawaharlal Nehru and Sardar Patel had internal infightings. Our own history is full of such animosities. Soon after the Constitution came into force, ZA Bhutto dismissed Governments in Balochistan and erstwhile NWFP. NAP was banned in 1976. Nationalist parties still continue to appear on the political landscape. Federations survive when these rights are respected and enforced.
Benazir Bhutto on her return from exile landed in Lahore in 1986. The people of the Punjab raised a slogan that became very popular (Charon soobon ki zangir-Benazir-Benazir). She became the Prime Minister of Pakistan and honored and accepted the federation originated by her illustrious father and the people of Pakistan. She signed the Charter of Democracy (COD) in 2006. By that time, the democrat in her had lost to the power game. COD provided a blue-print for the 18th Amendment. Seemingly influenced by the American Declaration of Independence of 1776, COD was actually was a petition of grievances against the establishment, which over the past many decades, had allegedly undermined the political process. COD was, however, conveniently silent about corruption.
The untimely deaths of Nawab Akbar Bugti and Benazir Bhutto created bad blood and added to the long list of grievances mentioned in COD that provided ground for making an encompassing Amendment to the Constitution called "the 18th Amendment" that created a new federation as elaborated below.
But the questions that torment a thinking mind and are raised for consideration are:
a. whether this new federation has brought any good to the lives of millions of masses in whose name this amendment was made?
b. Has not this new federation created more disputes, legal controversies and political problems and mistrusts amongst the provinces and the federal government?
More than nine years have passed. Life and condition of the people in whose name this amendment was made has gone from bad to worse but our politicians keep repeating their mantra.
Interpolations, as claimed by some circles in the Constitution by RCOs PCOs and LFOs made during Zia's rule were purportedly corrected through the 13th Amendment adopted in 1997. The sum and substance of this amendment was to empower the Prime Minister and to remove Article 58(2) (b) whereby the President could dismiss the Government and dissolve the Assemblies.
General Musharraf during his tenure amended the Constitution many times. He gave the taxation power on services to the provinces in 2000. An examination of LFO 2002 and the Seventeenth Amendment would show that nothing was done therein to disturb the working of the federation as provided in the original constitution. It was claimed in the COD that the Constitution would be restored to its position obtaining on 12 October 1999.
18th Amendment in so far as the working of the federation is concerned made Amendments whereby:
1. Concurrent Legislative List (CLL) contained in the Fourth Schedule of the Constitution was abolished. The principle of concurrency however was not abolished. Under Article 142 (b) in respect of criminal law, criminal procedure and law evidence concurrent powers were given to Parliament and Provincial Assemblies. Under Article 143 of the Constitution, a federal law, in so far as the above subjects were concerned, would prevail over the provincial law to that extent would be void.
2. Entry 21 (Major Ports, that is to say, the declaration and delimitation of such ports and the constitution an powers of the port authorities therein), Entry 32 (National Planning and national economic coordination including planning and coordination of scientific and technological research) was substituted (with International treaties, conventions and agreements and international arbitration), Entry 33 (State lotteries) deleted), and entry 38 (census was deleted from Part I of the Federal Legislative List and put in Part II of the Federal Legislative List. Entries 45 & 46 (Duties in respect of succession to property and Estate Duty in respect of Property, were deleted(Duties and taxes collected from these two subjects and Sales Tax on Services would now go to the Provinces).
3. Entry 4 Electricity, Entry 43 legal, medical and other professions were taken from the Concurrent List and moved to part II of the Federal Legislative List (FLL).
4. Part V of the Constitution deals with Relations Between the Federation. This is the most amended Part: -
Article 144, whereunder Federal Legislature could legislate upon a provincial subject upon request of one province now it can do so on the request of two or more states.
Article 147 whereunder a province could entrust its functions in relation to any matter to which the executive authority of the Province extends. A new proviso has been added whereunder the Provincial Government is obligated to get ratification for such entrustment from the Provincial Legislation.
This proviso serves no purpose at all. It is rather in conflict with the scheme of the constitution in this part. Article 146 clarifies the original scheme behind all these provisions. Executive Authority of a government has two components; one under the constitution for which a legislature has no control over the executive and the other one is the executive authority which is coextensive with the legislative authority (Articles 97 & 129).
Article 149 Clause 2 "The executive authority of the Federation shall also extend to giving of directions to a Province as to the carrying into execution of any Federal law which relates to a matter specified in the Concurrent List and the authorities giving such directions (what about Article 142 (b)?)
Article 153 (2) has been substituted. Now there are an equal number of members from the Federal and Provincial Governments. There is a great likelihood that 4 provinces go on one side and the Federal Government with its 4 members on the other side. There is deadlock over many issues.
Clause (4) has also been amended by adding that CCI shall submit an Annual Report to Parliament.
Article 154 (Functions of CCI) has also been amended. Two new sub-clauses have been added. The constitution of CII within 30 days and a permanent secretariat.
Article 155 has been amended. The words 'or reservoir' have been added which simply means that Federal Government cannot build a dam in the absence of a decision by CCI. The Federal Government does not enjoy majority in CCI. Moreover, the matter of dams is now politicized as CCI mostly deals with politicized matters.
Article 156 has been substituted. Under the new composition, four Chief Ministers are now members of NEC. The Prime Minister would nominate four members. NEC would meet twice in a year and it has been made responsible to Parliament and is obligated to submit an annual report to Parliament.
Article 157 has also been amended. A proviso has been added to clause 1 whereunder Federal Government shall consult with the Provincial Government concerned before constructing or causing to construct a hydro-power station.
A new clause 3 thereto has been added whereunder in case of dispute between the Federal and Provincial Government(s) the matter shall be referred to CCI.
(To be continued)