PROVINCIAL AUTONOMY:
CONSTITUTIONAL REMEDY

By:
PROF. ZILL-I-ATIF
Director & Head Faculty of Law
GC University Faisalabad.

And

MR. HASSAN TARIQ
Lecturer Faculty of Law
GC University Faisalabad.

The question of Provincial Autonomy has been a thorny issue in the political constitutional and legal history of this country. A prominent political party has tabled a bill in the Parliament regarding Provincial autonomy. 1 Furthermore Charter of Democracy is said to be the great charter that could turn the tide of history in this country. Out of 36 clauses of famed Charter of Democracy, two most potent and much Provincial Autonomy.2 On 10th of April 2009 a parliamentary committee was formed to assist in the implementation of the said charter. We have to see which constitutional amendments would be recommended and effected to rectify the position on Provincial Autonomy. It is a matter of prime reckoning that Provincial Autonomy emanates from various Constitutional provisions and may be altered therein. It must be remembered that Pakistan is a federation wherein the Constitution is considered the sole intra Provincial agreement and creates the polity called the federal Government. 3

The Constitution thus forms the federal pivot not only in Pakistan but in all other federations of the world -India, Australia, Canada, United States of America, South Africa. It must also be understood that the federal framework and the incumbent concept of Provincial Autonomy is different in all federations. While the federal structure in USA provides an adequate model of federalism, all federations have their own peculiar indiginized systems. It must also be understood that the federal principle along with the inbuilt concept of Provincial Autonomy is determined by the mutual agreement of the constituent partners which actually is the Constitution. Changes in the degree of Provincial Autonomy, therefore, would require amendments in the Constitution. An overview of the relevant Constitutional provisions is necessary to determine the extant of Provincial Autonomy in Pakistan.

Let us first look at the constitutional provisions that promote or tend to secure Provincial Autonomy. Part V of the Constitution deals with relations between Federation and Provinces. 4 Chapter I of the same part entails distribution of legislative powers between the center and the provinces. Article 142 of the said chapter says that a Provincial Assembly---- the legislative agent for a province--- shall have powers to make laws with respect to matters not enumerated in either the Concurrent Legislative List or the Federal Legislative List. As per the established federal principle, the un-enumerated or residuary powers should belong to the provinces to enable Provincial Autonomy. Such powers are supposed to be numerous and ever-increasing, as against the federal powers which are supposed to be selected few. 5 This is the position in the US Constitution -10th Amendment of the U.S. Constitution which says, “The powers not delegated to the United States by the Constitution nor prohibited by it to the states, are reserved to the states respectively, or to the people” 6 Other acceptable federal models recommend too that appropriate formula is to enumerate and limit the powers of the center and leave the unenumerated or residuary powers to the provinces. Constitution of Pakistan 1973 follows the same formula.

Another Article that favours Provincial Autonomy is Article 105 where the governor, being the representative of the center, is to act in accordance with the advice of the provincial cabinet or the chief minister. The 8th amendment Act has however diluted the effect of the provision by adding a proviso that the governor may return such advice to the sending authority and ask it to be reconsidered. Nevertheless, this Article signifies that the chief minister is the chief executive of the province and not the governor. This allows pre-eminence to the province as against the centre, 7 because the Chief Minister is the elected head of the province and represents the mandate of the people. Governor, on the other hand, is the agent of the center and his prime function is to co-ordinate between the center and the province.

A third Article that contains a clause upholding the principle of Provincial Autonomy is the very significant Article 239, which provides for the procedure of amendment in the Constitution. While it is stated that amendment shall be done through the Parliament, sub Article 4 ordains that a bill to amend the Constitution, which would have the effect of altering the province, shall not be presented to the president for assent unless it has been passed by the provincial assembly of that province by the votes of not less than two third of its total membership. The Constitution makers, therefore, thought it expedient that where the alteration of the province is involved the provincial assembly has to be included in the process of amendment.  In all other matters the provincial assemblies have been excluded. 8

Article 50 of the Constitution provides for a bicameral legislature which is considered an important integral part of the federal principle. A unicameral legislature may be effective for a unitary form of government but for a federation there must be two Houses of the Parliament to afford proper protection to the smaller states. The lower House, in our case the National Assembly, is considered the defender of the people while the upper House, the Senate, is supposed to be the defender of the states. Lower House is elected on the basis of population and the bigger states normally have a commanding majority. Punjab in the National Assembly has more seats than the other three provinces put together.  All provinces, small or large, have an equal membership in the Senate. Under Article 59 of the Constitution of 1973, all the provinces have 24 seats each in the Senate. This safeguards the legislative interests of all provinces and any law detrimental to the interests of the smaller provinces may be checked in the Senate. Article 50 is therefore another Article that supports Provisional Autonomy. 9

Article 28 is an Article that falls in Chapter II of Part I which contain fundamental rights. Besides being a Fundamental Rights Article 28 also provides an important guarantee to the provinces. Article 28 proclaims that any Section of citizen having a distinct language, script or culture shall have the right to preserve and promote the same and establish institutions for that purpose. 10 Federation comes into existence where a need to preserve cultural, ethnic, linguistic identity is juxtaposed, with a need to cohabit as one nation state. Article 28 thus recognizes the sentiment that is the essence of federalism. Behind the demand for Provincial Autonomy and self –governance lies such a will to preserve cultural and linguistic identity. Such a right guaranteed under Art 28 is however, subject to law. 11

An overview of the Constitution thus shows that there are Articles like Article 142,105, 50,239, 28 that seek to secure Provincial Autonomy. An analysis of the Constitutional provision that restrict or secure Provincial Autonomy, however, seem to outweigh the provisions that enhance Provincial Autonomy.The first Article that stands as a glaring negation of Provincial Autonomy is Article 112(2) of the Constitution. This is a creation of the devious eighth amendment and is a parallel of the thorny Article 58(2) of the Constitution. Under Article 112 the governor, who is an agent of the federation, may dissolve the Provincial Assembly “in his discretion” and with president’s approval, if in his opinion a situation has arisen in which the Government of the Province cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary. 12 In a true federation such a provision has absolutely no place. The Provincial Assembly represents the will of the people of the province which can be undone through an order of the governor and the president. The determining criteria for such dissolution would be the “discretion” and the “opinion” of the governor which have to be re-affirmed by the president. The governor is the agent of the Center but the unfortunate eighth Amendment gives him a right to dismantle the entire political system of the Province with the stroke of a pen.

In regard to the governor an inexplicable provision has been added through the Eighth Amendment Act in Article 129 of the Constitution. The amended Article states that the exclusive authority of the province shall vest in the governor and shall be exercised by him, either directly or through officers subordinate to him.  Should the executive authority not vest in the chief minister? Is he not the chief executive? This Article was amended by the military regime to undermine Provincial Autonomy and enhance Center’s control over the provinces. The original Article read that the executive authority of the province shall be exercised in the name of the governor by the Provincial Government consisting of the chief minister and provincial ministers which shall Act through the chief minister. 13 

Chapter 2 of part V of the Constitution deals with administrative relations between federation and the provinces. Article 148 is included in the said chapter and impairs Provincial Autonomy by stating that the executive authority of every province shall be so exercised as to secure compliance with federal laws which apply to that province. The Federation on the other hand is required merely that, “regard shall be had to the interest of that province”. 14 Why the disparity? It is clear that the provinces have been relegated to a subordinate position. Both the Centre and the Province should work within their designated spheres of legislative authority and should have mutual regard and respect for each other’s Constitutional authority. Article 148 tries to tip the balance in favour of the Center. The sense conveyed by the said Article is clearly not of parity but subordination.

Chapter 7of the same part deals with distribution of legislative powers between the Federation and the Provinces. Reference therein is made to the fourth schedule of the Constitution which contains two legislative lists. 15 Federal Legislative List contains the subjects or powers of the Federation while Concurrent legislative list contains subjects of both the Federation and the Provinces. What happens when the Federation and the Provinces both legislate on a particular subject and there is a conflict? A precarious state no doubt. The answer lies in Article 143 whereby if any provision of an Act of Provincial Assembly is repugnant to any provision of an Act of Parliament with respect to any of the matters enumerated in the Concurrent Legislative list, then the Act of Parliament whether passed before or after the Act of the Provincial Assembly, shall prevail and the Act of the Provincial Assembly shall, to the extent of the repugnancy, be void. That really undermines Provincial Autonomy. Why should this be the case? It means that Concurrent Legislative List actually belongs to the authority of the Centre where the province may intervene only if an area has been left unattended by the Centre. 16 

            This brings us to the culminating point of the constitutional study regarding the thorny issue of Provincial Autonomy - the analysis of the Legislative Lists. As stated above, the legislative powers of the Centre are given in the Federal Legislative List which is in the fourth Schedule of the Constitution. Centre and the Provinces have Concurrent Jurisdiction in matter enumerated in the Concurrent Legislative List. But in case of inconsistency the Federal Law shall prevail 17.  The Concurrent Legislative List thus effectively belongs to the Centre as well. Now how many areas or powers are enumerated in the two lists? The exclusive power of the Provinces is only in respect of the non-enumerated powers. 18 That would be the real test of the Federation and its incumbent concept of Provincial Autonomy in Pakistan. Now Federal Legislative List has two Parts and a staggering sixty- seven subjects in all with fifty-nine in the first Part and eight in Part II. Furthermore, the Concurrent Legislative List has a total of forty-seven subjects. The Centre can thus legislative hegemony in one hundred and fourteen subjects. 19 This is outrageous. Compare it with the eighteen subjects allowed to the Centre in the American Constitution 20.And so it is said that United States presents a fair federal model and should be followed.  The Charter of Democracy has, therefore, recommended abolition of Concurrent Legislative List so that these powers fall in the exclusive purview of the Provinces. The question, however, arises whether that would be sufficient to restore parity between the Centre and the Provinces? It is in these areas and owing to this grey area in the Constitution that there have been a few voices audible calling for a completely new social contract to sustain this federation.

The last area that is questionable as regards Provincial Autonomy is Chapter 3 of Part VI in the Constitution. The said Chapter deals with the appointment and powers of the

Auditor- General of Pakistan. He is to be appointed by the President of the country and his powers and functions as conferred by the Parliament and the President shall be “in relation to ….. the accounts of the Federation and the Provinces”. It is furthermore stated in the Constitution that, “the accounts of the Federation and of the Provinces shall be kept in such form and in accordance with such principles and methods as the Auditor-General may, with the approval of the President prescribe.” 21 Why should an officer who is essentially appointed and controlled by the Centre supervise the finances of the Provinces? It seriously undermines Provincial Autonomy of the Provinces as they are disallowed financial independence. 

In conclusion, and in view of the lop-sided constitutional provisions in favour of the Center serious amendments must be considered to afford balance to our federal structure. Otherwise this shall cause a threat to the very foundations of the state. To attempt accumulation of powers with the center under the garb of a federation shall only breed discontent and separatist tendencies.

Footnotes

1.           See http://www.dawn.com/2004/07/06nat20-3-htm  Bill was moved by Balochistan National Party that sought to amend the Constitution for increased Provincial Autonomy

2.           Charter of Democracy? http://www.dawn.com/2006/05/16/local23.htm

3.           Hamilton, Jay, and Madison: the Federalist http://wikisum.com/w/Hamilton%2c_jay%2c_and_Madison:_The_Federalist Also see James Madison’s Federalist No. 10 and the American political system  http://cstl-cla.seno.edu/renka/Renka-papers/Madison.htm

4.           Rizvi, S. “Constitutional Law of Pakistan: Text case law and analytical commentary. P. 705 “Vol. 2nd Edition, 2005. Vanguard.

5.           Supra No. 3

6.           See infra No. 19. P. 442

7.           Supra. No. 4 p.621 also see Khan F.Z, “The Constitution of Pakistan 1973 with Judicial Analysis”. P- 190 1st Edition, 2004, Sohail Publishers.

8.           Rizvi, S, “Constitutional Law of Pakistan: Text case law and analytical commentary” P. 1497 Vol. II. 2nd Edition 2005, Vanguard.

9.           Ibid P. 350 Vol. I.

10.        Ibid P. 262 Vol. I.

11.        See the case of Pir M.H. Ansari Vs University of Karachi PLD 1957 Khi p.611

        Where under such right guaranteeing cultural and linguistic presentation, the University in Karachi was disallowed to regulate examination only in one regulate examination only in one regional language. It was held that such a right may not be used to eliminate or restrict national language and culture.

12.         Rizvi, S. “Constitutional Law of Pakistan: Text case law and analytical commentary. “Vol. P. 631  2nd Edition, 2005. Vanguard.

13.        Khan F.Z, “The Constitution of Pakistan 1973 with Judicial Analysis.” P. 206

14.        Ibid P. 216

15.        Supra No. 7 P. 1778 Vol. II.

16.        Supra No. 12. P. 214

17.        Ibid.

18.        Supra No. 5

19.        Supra No. 7 See the analysis of the legislative lists and a collection of their respective subjects.

20.        Corwin S.E “The Constitution and what it means today” (Revised by Chase H and Ducat. C) P.38. 14th Edition, Princeton University Press

Supra No. 7.  P. 802. See Article 168, 169 of the Constitution.