DURING his visit to Karachi on April 19, Prime Minister Yusuf Raza Gilani reiterated his resolve to give top priority to the issue of provincial autonomy. Such reassurances are imperative to remove the prevailing doubts amongst the people of the smaller provinces.
It is, therefore, understandable that immediately after receiving the vote of confidence, the prime minister spelt out his 100-day agenda. Amongst other things, the latter stresses the need for granting autonomy to the provinces. The prime minister also promised to delete the Concurrent List from the Fourth Schedule of the Constitution, as was the intention of the authors of the 1973 Constitution.
The prime minister is fully mindful of the commitments his party has made in the election manifesto as well as in the famous Charter of Democracy signed in London by Ms Benazir Bhutto and Mr Nawaz Sharif in May 2006.
Maximum possible autonomy to the provinces is no doubt the sine qua non for the survival of Pakistan. This was the commitment made under the 1940 Lahore Resolution and was the essence of the Cabinet Mission Plan of 1946, which was accepted by the Quaid.
The federating units had opted for Pakistan on the basis of autonomy and not religion. In 1999, then Chief Executive Gen Pervez Musharraf had the issue before him and he spoke of it in his famous address to the nation on Oct 17. Like the other items of his seven-point agenda, autonomy has remained an illusion. Instead of taking steps to make the provinces autonomous, Gen Musharraf has centralised all powers in his own office.
It is, however, not understood why the prime minister or his party now need a year to abolish the Concurrent List. There is complete unanimity on this issue amongst all four component parties, namely the PPP, PML-N, ANP and the JUI, who command support of more than two-third of the members of the National Assembly.
Moreover, the commitment of other parties in parliament such as the MQM is also very categorical on this issue. In any event, prudence and caution demand that radical reforms and necessary amendments in the Constitution ought to be made at the earliest stage, to avoid friction developing among the coalition parties.
The federal government should establish its credibility and reliability. If, for reasons best known to the government, it needs one year to delete the Concurrent List, then in the meantime, it must earn the goodwill and satisfaction of the smaller provinces by immediately taking decisions that do not require any amendment in the Constitution for empowering the provinces.
The government is fortunate in having those parties in the provincial governments that constitute the coalition. Hence, it has nothing to fear and can expect maximum cooperation. To show his sincerity on this issue, I suggest that the prime minister start downsizing the unjustifiably huge federal government, which is not even sanctioned by the Constitution.
A careful study of the Constitution will show that many of the divisions and ministries in the federal government do not enjoy the sanction of the Constitution. The executive authority of the federal government is limited to what is prescribed by Article 97 which clearly provides that it shall extend only to matters with respect to which parliament has the authority to make law. The Fourth Schedule under Article 70(4) of the Constitution has specified the matters on which parliament is competent to legislate. On the other hand, Article 142(c) clearly prohibits parliament from legislating on matters not enumerated in either the Federal Legislative List or the Concurrent List.
Articles 97 and 142 read together clearly stipulate that (i) the federal government enjoys unrestricted executive and legislative authority only in respect of matters specified in the Federal Legislative List; (ii) only legislative authority with conditional executive authority is enjoyed by the federal government in respect of matters specified in the Concurrent List; and (iii) the executive and legislative authority in respect of matters not enumerated in either of the two lists, i.e. residuary powers/matters, exclusively vest in the provinces.
A scrutiny of the two Legislative Lists discloses that some of the divisions or ministries are not specified either in the Federal Legislative List or in the Concurrent List. These are rural development, local bodies, co-operatives, food, agriculture, livestock, housing, sports, youth affairs, minorities, etc. It would therefore, follow that such matters and subjects are beyond the scope of the executive authority of the federal government.
Consequently, the first category of divisions and ministries in the federal government which have not been specified in the said two lists should be in the first instance assigned and transferred to the provinces exclusively.
The second category of unnecessary divisions and ministries in the federal government pertain to matters which appear in the Concurrent List to authorise legislation by parliament, but where the executive authority to implement those laws is conferred on the provincial governments. The powers of the federal government are further clipped by the proviso in Article 97 which prohibits the federal government, unless expressly authorised by the Constitution or any law, from exercising its authority in any province on a matter with respect to which the provincial assembly has also the power to make laws.
It would, therefore, be an exercise mandated by the Constitution to transfer most, if not all, of those ministries and divisions (or at least most of their functions) to the provinces, for example, labour laws, criminal laws, family laws, health and education and laws relating to subordinate courts etc.
The third category is that of the ministries which can be clubbed together on the basis of the criteria of similarity in the nature of functions being performed by the different divisions or ministries. Hence, there is no need to have so many ministries in the social sector because the laws and functions relating to them are performed at the provincial or district levels. The role of social sector ministries in Islamabad should be limited to supervision and coordination on these matters between the provinces and international forums such as the UN organisations, donor agencies and so on.
The abolition of unnecessary divisions and ministries and the assignment or transfer of some of them to the provinces would not only result in huge savings, but would also promote a sense of security, responsibility and participation among the provinces. The functioning of the state would thus be in accordance with the concept of true federalism, as was envisaged in the original Constitution. This would also help the federal government defeat the secessionist aims and designs of extremist regional and religious forces that are threatening the integrity of the country. n
The writer is a former senator, senior advocate of the Supreme Court, former attorney-general & federal minister for law, justice & parliamentary affairs & human rights.
Courtesy: Daily Dawn, 26/4/2008