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February '07: Failure of mediating institutions in Pakistanís Federation

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Failure of mediating institutions in Pakistanís Federation

To say that Federalism in Pakistan is a huge mess will be a gross understatement: A federal polity simply does not exist in the country. What instead exists is a confusing mix of federal structures, federal institutions and federal principles grafted on to a unitary system which is run by an all powerful president whose decree can supersede, suspend and even annul any constitutional agreement between the federating units if and when he likes.

Itís this enormous anomaly of a quasi-presidential system, working for all intents and purposes as a unitary state, which befuddles all the debate about federalism in Pakistan. Whatís wrong with the federation called Pakistan is not that some federal institutions have failed to deliver. Itís rather the unitary instincts of the people holding power at the Centre that does not allow federalism to take roots and prosper. The most recent instance of this taking place is the privatization of Pakistan Steel Mills.

After the Supreme Court of Pakistan annulled the millís privatization in the middle of 2006, the federal government was forced to reconvene the Council of Common Interests (CCI), a long dormant federal institution to comply with the courtís orders. But the reconstituted council, in its maiden and so far only meeting, just endorsed the federal governmentís plans to go ahead with the privatization process of the Steel Mill after removing the objections raised by the government.

This should not be taken to mean that there are no issues other than the steel mills for the council to take up. In fact, going by its constitutional mandate, it should be the forum to discuss all the various disputes that the federating units have among themselves over the ownership of resources Ė especially land, water, minerals, oil, gas and hydro-electric power. These disputes have a history of lingering on with out a resolution for decades and still they have never been taken up by the Council of Common Interests -- even once. Instead, all out efforts have been made to resolve them through means ranging from the use of lethal power to the communication skills of the strongest individual in the country. The fact that they have remained as divisive as ever does not surprise many.

Take the dispute between the central government and the provincial government of the North West Frontier Province (NWFP) on the income generated by the production of electricity from river water. It has been ricocheting between the various departments of the two governments as well as a number of judicial and quasi-judicial institutions for resolution since 1970s. Every solution that these departments and institutions have come up with has been either challenged or only partially implemented, thereby augmenting the dispute instead of helping to resolve it. It should have been an ideal candidate for a thorough debate, leading to some sort of a resolution, in the Council of Common Interests. But because the institution, even when it was revived recently after so many years, is meant for rubber-stamping the decisions made by the central government, or more suitably whoever hold powers in Islamabad, it is never allowed to take up the hydro-electric power profit issue.

The two other most burning issues that the council is constitutionally mandated to deliberate and decide on are the simmering dispute between Federally Administered Northern Areas (FANA) and NWFP over the proposed construction of Diamer-Bhasha Dam on the River Indus and the construction of Kalabagh Dam, disputed between Punjab, NWFP and Sindh.

But highly divisive and, from a federal perspective, extremely unfortunate decisions are taken about the two issues unilaterally either by the Federal Government itself or in the meetings of non-representative officials of various concerned departments of the Federal as well as Provincial departments. The two dams are far from getting built but they have nevertheless divided the Federation across dangerous fault-lines. The only way that the country can ever arrive at a decision on them is through representative, empowered federal institutions which allow a democratic debate to take place among the federating units to know their rights and obligations.

This lack of representation and authority is also at the root of the failure of another institution Ė the National Finance Commission (NFC).

Every federation with limited financial resources and unlimited needs and uneven development has trouble dividing money among its constituent units. The trick to avoid this lies in flexibility, especially when demographic, social and economic indicators are prone to rapid and multiple changes in the different Federating units. In Pakistanís case, the NFC has shown little flexibility in the allocation of resources : first between the centre and the provinces and then among the provinces.

One very important reason for the Commissionís failure is the fact that it usually ends up having more representatives of the Federal government than of the federating units.

Itís structure allows the President to nominate the representatives of the provinces in consultation with Provincial Governors which means that many of the commissionís members need not be concerned about the political imperatives of the federating unit that they represent. Any agreement reached by a body thronged by the Presidentís men is bound to create a lot of heartburn for any federating unit that feels to have lost out as a result of the agreement.

During the last decade or so, all the annual NFC awards have been announced through Presidential decree because a non-representative, disempowered Commission should, and has, failed to arrive at any consensus formula for the distribution of financial resources. Maybe, letting the elected institutions, both at the Federal and Provincial levels, to elect their representatives to the Commission can cut this Gordian knot and thereby allow them to function in accordance with the democratic aspirations of the people they represent.

Another issue where even a reformed NFC will fail is the issue of land ownership, mostly between the Provinces and the Centre. Of course, this is because the issue does not fall under the jurisdiction of the commission. But the way land gets transferred from the Local governments to Provinces and then on to the Federal Government is a bureaucratic labyrinth. The only outcome of this process is that the Federal Government ends up owning all the prime real estate in the country and using it for any purposes it likes.

The dispute between the military and peasants in Okara is only one off-shoot of this process. The others are construction of half a dozen cantonments across Balochistan on the land that the Federal Government has acquired from the Provincial Government and the development of a new city on two adjoining islands near Karachi. In the islandsí case, it is yet not clear who transferred to the land to the federal government and when but the development goes on nevertheless.

In Pakistanís recent history, no other Province has cried foul as many times as Balochistan has and mostly on the use of Local/Provincial lands for Federal projects including the construction of cantonments, gas and oil fields and pipeline and of late a deep sea port in Gwadar.

Certainly, Balochistan is a vast province and the appropriation of a few hundred square kilometers of land should not matter much if the requirements of its tiny population are taken into account. But clearly itís more a matter of having and exercising a right on something that belongs to them than being able to use it profitably. That Federal projects have a history of exploiting Balochistanís resources for the good of the rest of the country. Bypassing the Province itself only helps reinforce the political deprivation that people feel at the inauguration of ever more Federal schemes on the lands that belong to them. If the natural gas found in the Sui area of the province had benefited cities and towns in Balochistan as much as it did those in Punjab, the feelings would have been certainly different.

In the absence of any constitutional mechanism to take up these issues, the federating units either budge under the federal pressure as Sindh is doing on the issue of the islands or they keep churning resentment and anger as is the case in Balochistan. Unless adequate constitutional guarantees are provided to people that their local/provincial lands will not be taken over by the Federal government to settle people from elsewhere in the country, low level armed conflict is all set to thrive and keep going. Only a politically autonomous, economically independent and socio-culturally unsuppressed Balochistan, enjoying all its constitutional rights as guaranteed by a genuinely federal system, can remain at peace with itself, the Centre and the other units in the federation.

This raises the critical question of the quantum and nature of political, economic and administrative autonomy that the 1973 Constitution originally guaranteed. Even if we can forget all those periods of our recent history when the constitution was suspended, held in abeyance or abrogated, there is little that the document itself guaranteed by the way of what is collectively called provincial autonomy. Though there is no consensus even among the nationalist parties championing provincial rights about the definition of provincial autonomy, its broad contours can still be delineated.

If nothing else, it should allow the Provinces to run themselves independent of the control of the Federal Government except on subjects which categorically fall in the federal jurisdiction like defence, foreign relations and currency. But a mere look at the Constitution shows that it failed to provide for a list of provincial subjects along with those on the federal and concurrent lists. Agreed, the Concurrent List was to become Provincial list in due course of time but that has never happened mainly because by the time the expiry of the Concurrent list became due, Federal departments dealing with subjects on it had become so powerful that there was no messing around with them without creating trouble.

Another Constitutional anomaly was the quota system for federal jobs. Originally, it was to last for ten years and was meant to alleviate the problems that people from the less literate provinces and regions faced in competing with those from other parts of the country. The quotas were territory-specific instead of being community-specific which has allowed a huge number of people from outside of these areas to get themselves registered there as residents and benefit from the quotas not meant for them.

Hundreds of Punjabi families living in rural Sindh and Balochistan must have benefited from the system. Also, the quota system benefits only those sections of society which are relatively better off and have the ends and means to get decent enough education to enter into competition for federal jobs. It fails to address the most basic issues of providing basic education, literacy, health and decent opportunities of employment to those sections of societies in the under-developed regions which need them the most.

So when the Federal Government talks of increasing Balochistanís job quota as a way to address the Provinceís grievances, itís clearly a case of misplaced priorities. The Province needs more schools and hospitals to provide basic education and basic health to its poor populations than raising the job quota for its literate elite.

The Province, in fact, needs to have a clearly defined status within the Federation. Almost 90 per cent of its area is under the jurisdiction of local Maliks and Sardars with which the Federal Government deals directly with. The Provincial jurisdiction extends to only a small part of the Province. The writ of the Provincial Government needs to extend to the whole of the Province before it can realistically hope for a fairer treatment in political, economic and socio-cultural spheres.

This problem of territoriality is not just limited to Balochistan. Federally administered Tribal Areas (FATA) and Federally Administered Northern Areas (FANA) suffer from a similar malaise. Their life in the legal limbo as far as authority on their own land is concerned is the root of many current and old problems there.

Despite forming a huge chunk of the landmass of the countries, the two areas enjoy only miniscule political and economic freedom as compared to the rest of the country. Their representation in Federal Institutions is insignificant and their say in federal affairs non-existent. The only way to put to rest all the radicalism and sectarianism there is to allow people to be the in charge of their own affairs Ė in all spheres of life including religious and cultural as well as political and economic.

Before this long wish-list becomes too long for anybody to take seriously, many of the ills that federalism suffers from in Pakistan can be cured by the restoration of a genuinely democratic polity. A lot of the rest can be addressed by activating, reforming, strengthening and empowering already existing federal institutions hat can mediate.

Mr. Badar Alam is a free lance journalist and development consultant based in Lahore, Pakistan. He wrote this piece exclusively for Individualland.




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