Scope of constitutional provisions and space for provincial autonomy

Mr. Zafarullah Khan, Esecutive Director Centre for Civic Education Pakistan.

The Civic Education Network Pakistan organized a learning event; Constitutional Literacy Campaign, “Scope of Constitutional Provisions and Space for Provincial Autonomy” in Lahore on July 31, 2011.

The 18th Amendment and the 7th National Finance Commission(NFC) Award have signficantly changed the the resource distribution criterion, ownership over natural resources and modalities of fiscal management such as provinces’ power to raise domestic and international loans. By doing away with the Concurrent Legislative List it is expected that the cost of governance at various level will change. It is in this context that this learning event was organized to acquaint with and appraise the changes that have occurred and also to look for a way forward.

Mr. Zafarullah Khan, Executive Director Centre for Civic Education Pakistan welcomed all the participants and introduced the basic concept behind learning event. Senior journalist Mr. Hussain Naqi and Dr Jaffar Ahmed, director of Karachi University’s Pakistan Study Centre, also spoke on the occasion.

The main feature of the program was a presentation by Mr. Zafarullah Khan on ‘Scope of constitutional provisions and space for provincial autonomy’. The presentation was wonderful, well-researched and informative overview that I want to share with readers.

The following is the full text of the presentation.

Scope of constitutional provisions and space for provincial autonomy

Zafarullah Khan

Centre for Civic Education Pakistan

We the People of Pakistan

Islamic Republic of Pakistan

[Only the Islamic provisions are taught. No focus on the republic. Result: Public and the republic are not on the same page]

Citizens(180 million plus) are the content of ‘Pakistani Democracy’ But the system is Elite ENGINEERED for the Elite

Democracy debate in Pakistan defies traditional “preconditions and outcome notions” and we the people refuse to de-learn our incremental lessons in Federal Parliamentary Democracy.

The Constitution: An all encompassing umbrella

Social contract between the Citizens and the State.

A set of fundamental principles or established precedents according to which a state is governed.

Citizens get rights, the law legitimacy and the State institutions

Sanctity(can’t changeeven a full stop or a coma) and flexibility(amendments through prescribed mechanism). Our constitution has been amended 16 times since 1973.

Pakistani Experience

Failure to cobble-up a viable constitution(1947-1956)

High morality rate of constitution(1956, 1962, 1973 = In abeyance for 13-years out of its 38-years life. Hybird military-civilian regimes for 11-years)

Cynicism that the Constitution is irrelevent for ordinary citizens.

[Military regimes get PCO Judges, Puppet Politicians, but fundamental Rights are usurped, so citizens become slaves]

Federal-Provincial experiences

Politics: Federal GRIP(Governor, revenues, institution/ideology, policy)

Development: Federally planned” and “provincially executed” [Doner dependent, policy errors, non utilized development budgets, etc]

Failed Local Government Initiatives(basic democracy, National Reconstruction Bureau’s system. Ladder of legitimacy for usurper in uniform)

Civil Service: Federal bureaucrats (CSS) down to Tehsil.

Powers: paramountcy of Federal over Provincial due to Concurrent List and blurred boundaries of Residual power(Article 142). Central encroachments, especially on natural resources.

Post-18th Amendment situation

Out of the 47 subjects of the concurrent list one item boiler(no.29)has been shifted to the Federal Legislative list-I. And two items i.e Electricity and Legal, medical and other professions to the Federal Legislative list -II(Participatory management both by the federation and the federating units through Council of Common Interests.

Four Subjects have been shifted from part one of the Federal Legislative list to part two(Shared responsibility). These subjects include:

1. Major ports, that is to say, the declaration and delimitation of such ports, and the constitution and powers of port authorities therein.

2. Census.

3. Extension of the powers and the jurisdiction of members of police force belonging to any provinces to any area in other province to exercise powers and jurisdiction in another provinces without the consent of the members of a police force belonging to any province to railway areas outside the province.

4. National planning and national coordination including planning and coordination of scientific and technological research.

Post-18th Amendment situation

Five entries omitted from Federal List-I

Four new subjects have been added to the federal Legislative List-II(Shared responsibility through CCI).

1. All regulatory authorities established under a Federal Law.

2. Supervision and management of public debt.

3. Standards in institutions for higher education and research, scientific and technical institutions.

4. Inter-Provincial matters and coordination

Shared ownership in oil, gas and territorial waters(Article 172). Say in water management (Article 155) Power generation (Article 157).

Resources distribution for provinces(7th NFC, control over natural resources, GST on services, duties in respect of succession to property, estate duty in respect of property, power gains, power to raise loans etc.)

Strengthened Council of Common Interests with mandatory quarterly meetings. Concepts of shared responsibility

Window of Inter-Provincial Co-ordination

Provincial say in emergency related provisions, Governor and Senators to be from the same province.

Democracy Delivers:

There was a commitment to abolish the Concurrent List within 10 years after the enactment of the Constitution of Islamic Republic of Pakistan on August 14, 1973. the deadline passed as on August 14, 1983, the constitution was in abeyance under military regime.

Practically the original and cleaned Constitution of 1973 has worked only for five years. From August 14, 1973 till July 5, 1977 i.e Four years and two months). In this way Pakistani democracy can rightly take a pride that it is fulfilling its commitment to the people of Pakistan within only 5-Years.

Rest of the period was either an era of suspended constitution or hybrid military regimes and diluted democracy under the infamous 8th Amendment during Zia regime.

July Symbolism (On July 1, 1970 centralized One Unit was abolished). Designated as Day of Provincial Autonomy.

Tale of Two Devolution!

Devolution Vs Devolution

2000-2008 Donor driven, exclusionist(43 cantonments, federal capital, FATA, GB out of the ambit(, by-passed provinces, lacked fiscal power., ostensibly non-party based but highly partisan, totally new institutional architecture, recycled rot elite.

2010-Democratic demand driven(Charter of democracy), across the board political consensus, empowered provinces with increased fiscal powers.

No new institutional architecture. Already line ministries/department exists at provincial level.

Policy, legislative, and provincial autonomy to provinces.

The Way Farward: Time to Wake-Up

Trust provinces(transfer has been completed by June 30, 2011, first ever constitutional deadline realized) Transition institutional and human capital i.e provincial services, and transformation frderal mindset, culture: ON-GOING.

Take democratic devolution down to to district (Article 140-A).

Provinces can come to federation (Article 147 to be endorsed by the Provincial Assembly)

Constitutional Amendments (19th Amendment is an example)

Facilitate transition(Cost of devolution, hand holding etc. The CCI has done it.)

Allow ‘de fecto concurrency’ or Inter-Provincial Co-operation

“Federalism Test” for future national projects

Reform politics and parties

Strengthen provincial civil services

Pro-active civil society and media(Right to Information and Right to Education)

New Pakistan is making

Understand it, grasp the opportunity and contribute to realize it

Perform or perish

Federalism/democracy is always a work in progress. Countries are not carved on stone, rather they are organic and dynamic. They always reform to respond to new challenges.

Remember DINOSAURS were huge, but they perished when they lost their compatibility.

Final message:

Time has arrived to

Democratize Pakistani Democracy

It is possible only when we all will become

Active and Effective Citizens