Volume 23 Issue 2, February 2019


Our much-amended and much-abused Constitution, after its tumultuous birth on 1973 in the wake of the breakup of Pakistan, has been mutilated every so often by those in power mostly to suit their own political ends. In fact this process of mutilation began immediately after the promulgation of the Constitution in 1973 when the then incumbent Prime Minister Zulfikar Ali Bhutto introduced various amendments to facilitate the introduction of reforms that were part of his political agenda.

Unfortunately throughout our history our various Constitutions were never accorded the sanctity that is usually imparted to such documents in established democracies. Part of the reason for this is that our various Constitutions were “given” to us by an autocrat rather than arrived at through consensus of genuine representatives of the people of Pakistan. The picture of Ayub Khan presenting the 1962 Constitution on PTV will forever remain etched in our memory when, while presenting the Constitution, he said, “I give you the Constitution of Pakistan”.

The only person who could have done that and yet not have caused any eyebrows to be raised was Jinnah but he was too much of a democrat to do it. Yet we only wish he had done just that because we would then have had a non-controversial Constitution which has forever eluded us. For Jinnah it would have entailed a couple of hours of dictation to his stenographer but to the nation it would have saved years of trials and tribulations in their search for the holy grail, i.e. a suitable Constitution for a new and hastily put together country by outright dishonest topographical engineering by the British in the subcontinent in 1947.

From the very start that is after the death of Jinnah the separatists and the protagonists of parochialism raised the issue of Pakistan not being a State but a conglomeration of States for which they relied on the text of the 1940 Pakistan Resolution. Later, upon Ayub bulldozing the One Unit formula, whereby East Pakistan and West Pakistan became two Provinces, parochial feelings in various units of West Pakistan and also East Pakistan, were exacerbated and when Ayub was replaced by yet another general, Yahya, the latter, in order to win favour of the masses, broke up West Pakistan into the original four Provinces, hoping it would diminish parochialism. But alas, it was not to be. Parochialism, instead of diminishing, actually increased leading to emergence of the 6 points of Mujibur Rahman of the then East Pakistan, the main feature of which was that except Defence, Communication, Foreign Affairs and Currency, all other subjects were to be with the Provinces. This also served to give boost to hitherto simmering parochialist feelings in the constituent parts of the erstwhile West Pakistan in the form of demand for autonomy for the Provinces.

As for the adverse fallout from Six Point formula of Mujib in West Pakistan the reigning military government, as per its natural proclivity, managed to curb the demands for autonomy from attaining any serious proportion. Since Punjab, the largest Province, had hitherto been in a dominant position and the majority political party in Punjab invariably formed the government at the centre, the demand for autonomy for the Provinces was sidelined even when civilian government returned.

However, when in 2008, in the wake of the assassination of Benazir, the sympathy vote, by quirk of fate, brought PPP into power at the centre with a sizeable majority, the tables were set for Sindh to assert itself which had forever been straining at the leash as regards the question of autonomy, if not for other Provinces at least for Sindh. The Province has also looked upon the pre-eminence of military regimes as their bête noir ever since the hanging of Zulfikar Ali Bhutto in 1977. These feelings were further aggravated by promulgation of the 8th amendment to the Constitution in November, 1985, whereby under the infamous Article 58(2)(b) the President could remove the Prime Minister without much ado. Thus at the very first opportunity in 2010, upon formation of the PPP Government, the PPP, using its clout and the prevailing ill will against military regimes, literally had the 18th Amendment pushed through the Parliament, virtually without any debate within or without.
The PPP used this opportunity not only to consign Art 58 (2)(b) of the Constitution to the dustbin of history but also introduced through the 18th Amendment the elements of the much-desired autonomy for the Provinces. This they did by removing the Concurrent List from the Legislative lists in the Constitution whereby the National Assembly, i.e. the Federation could make laws concurrently with the Provinces. Thus, now the Constitution has only a Federal Legislative list, thereby restricting the Parliament to make laws only on the subjects enumerated in the Federal Legislative List, while leaving the rest of the Legislative field open to the provincial assemblies.

In this manner the power of the Federation to make laws on a number of subjects, particularly Health and Education and various other subjects, was removed. Thus, ironically the same Mujib's Six Point Program for which Mujib was dubbed a traitor and which had caused the breakup of the country was now introduced by those who had been opposed to it all along through the 18th Amendment. If then the "Ifs" of history could be given any importance, if Mujeeb's six point program had been accepted by the then military regime, perhaps Pakistan would have never broken up and there would have been no need for the 18th Amendment in the first place.

There is no doubt that after three quarters of a century’s existence of our country, the Provinces are now in a position to govern themselves without any interference or spoon feeding from the Federation and that devolution of power is the need of the hour for better governance. Nevertheless, years of autocratic rule has set up a pattern of governance in our country where the Federation, using the Punjab’s clout and bureaucratic muscle and the accompanying haughtiness, is unable to restrain itself from interfering in the affairs of the Provinces, which, except for Sindh, are able to resist because of the weaknesses of their administrative infrastructure and lack of financial strength. Indeed any attempt by the smaller Provinces to assert themselves is looked upon as recalcitrance. There is no doubt that often such recalcitrance, particularly where it tends to hamper the functioning of the State itself, can cause embarrassment to the country and even harm the interests of the State. This presents an anomalous situation because while devolution of power is in the interest of good governance, the misuse of power so devolved can be harmful for the country. In a true Federation, this is corrected by a built-in system of checks and balances in the Constitution, like in America.

Such a system of checks and balances, unfortunately, can never be effectively put in place in a parliamentary form of government because there is a pre-requisite for clear separation of powers between the Legislative and the Executive arms of the State, which is difficult to bring about in a Parliamentary system. The two invariably overlap. The 18th Amendment has indeed for once made our country a true Federation but to enjoy its benefits it is necessary that the Provinces must develop a proper working relationship with the Federation where the autonomy of the Provinces is respected but at the same time the State has a free hand to take decisions in the interest of the Country as a whole.

It is for this reason that a Parliamentary system of Government is not suitable for a Federation because even if there is a second House, i.e. Senate, to protect the interests of the Provinces, invariably the National Assembly prevails in a Parliamentary system. For a Federation to function therefore, it is necessary that there should be a Presidential system of Government because then the President, with the backing of adult suffrage, is free to take unilateral decisions in the interest of the State whenever the interests of the Federation and the federating units clash. It can thus be safely said that the Parliamentary system of government in a Federation is truly an aberration.

The writer is a former Judge of the Sindh High Court. He can be reached at contactus@usmaniandiqbal.com.pk

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