When a distressed Member of Parliament from ex-Fata, spoke empathically about the sordid state of affairs in the tribal areas at the Asma Jahangir Conference held in Lahore, he lamented the degradation of the citizens from ex-Fata caused by the concentration of powers in the centre for the benefit of the Punjabi status quo. He is right to blame the status quo and his comparison to the Bengali depredation of the 1960s and 1970s is apt, yet his suggestion to radically overhaul the Constitution of Pakistan to have a new one is, perhaps, inconsequential. The Democratic Republic of Congo is anything but a democracy, its name is the epitome of anarchy. The Congolese have a joke: there have been six constitutions since the country gained its independence from Belgium in 1960, but they all have the same Article 15. The reference to “Article 15” is a joke. There is no such clause in the Congolese Constitution yet the joke is meant to be a disparaging innuendo about their Constitution. The most prominent interpretation of this joke is that it does not matter what the constitution says unless it is acted upon, its boundaries respected, undivided fealty offered to it, its spirit protected from the bestial transgressor.
There is a dilemma; at one time the Constitution is a strong document that acts as a resilient adhesive for the provinces populated by various ethnicities of Pakistan; one which can be enforced by the citizens against the state excesses. On the other hand, it is a dangerously fragile instrument, which can be broken down completely or its effect diluted. One has to see the Constitution as a document that is routinely debated in the Parliament and outside, interpreted and enforced in the Courts of Pakistan, in conjunction with the underlying Constitutional theme that led to its enactment. If one sees the Constitution from the vantage point of its origin, it is manifest that it was envisaged to be a federal charter predicated on the consent of the Provinces of Pakistan. Its departure from Ayub Khan’s one-unit Constitutional legacy, which sought to consolidate powers in the centre to artificially engineer a parity with the Eastern wing of Pakistan was bound to be counter-productive. By fulfilling the pledge of autonomy, the present 1973 Constitution was envisioned as a visible departure from the misgivings of the past. A sentiment of remorse perpetuated by the cataclysmic separation of East Pakistan is imbued in the Preamble to the 1973 Constitution. It reads as follows “wherein the territories now included in or in accession with Pakistan and with such other territories as may thereafter be included in or accede to Pakistan shall form a Federation wherein the units shall be autonomous with such boundaries and limitations on their powers and authority as may be prescribed”. Though the Preamble is non-justiciable, it nevertheless allows its readers to peek into the thematic structure underlying the Constitution. The problem lies not in its text, its structure or the need to agree on a new “social contract”, as the respected member Parliament suggested at the conference; it lies with our inability to enforce the Constitution as it was meant to be.
Though the much glorified 18th amendment fulfilled the promise of autonomy through devolution of powers to the Provinces, it faces a mammoth of challenges. What was expected to be an era of change from a federal-centric system of governance to the emancipation of provinces, free from the dominance of the Punjab led centre, is being diluted through the stroke of a pen and interpretation of the words of the Constitution. The fate of the 18th amendment appeared once again in the case of Dr Nadeem Rizvi v Federation of Pakistan before the Honourable Supreme Court of Pakistan. The majority judgement in the case interpreted the Constitution in the manner whereby certain hospitals providing research and special training facilities, despite being recognised as hospitals catering for the public, were declared to be under the control of the Federal Government, as opposed to the Provinces. The position negates the fact that hospitals and health has remained the sole legislative and the administrative domain of the Provinces even before the 18th amendment
The anxieties of the minority provinces are justified and need to be seriously dealt with. It cannot be done by yearning for a new Constitution but to address the fault line in our attitudes towards enforcing and interpreting its text that perpetuates their grievances.
However, this judgement may come to be known as the judgement altering the balance of power between the provinces and the Federation given the startling fact that the majority in the Honourable Court has allowed Federal legislation on areas concerning enforcement of fundamental rights, regardless of the consideration as to whether they possess the requisite power under the Constitution. The carte blanche opening to indiscriminately assume the powers of the Provinces has laid a judicial precedent for limiting the responsibilities of the Provinces thereby, circumscribing the effect of the 18th amendment. The majority while dilating upon the practical problems associated with provincial control of these hospitals, did not consider the exorbitant running costs the federal government would have to solely bear coupled with the consecutive increase in the National Finance Commission Awards mandated to be paid to the Provinces by the Federation. It may have been prudent, in terms of optimal resource allocation to allow the Provinces to retain control of the hospitals in question. Furthermore, the issue of reverting the hospitals and health to the Federation leads one to wonder as to the view future courts will take on more contentious issues relating to resource allocation and taxation. Nevertheless, the powerful dissent of an Honourable Judge in the judgement has a calming effect that exudes hope that attitudes may shift, compelling the minority judgement of today to be the majority judgement in the distant future to strengthen the roots of autonomy and de-centralisation in Pakistan.
The anxieties of the minority provinces are justified and need to be seriously dealt with. It cannot be done by yearning for a new Constitution but to address the fault line in our attitudes towards enforcing and interpreting its text that perpetuates their grievances. Dr B.R.Ambedkar, the framer of the Indian Constitution remarked, “I feel that the constitution [of India] is workable, it is flexible and it is strong enough to hold the country together both in peacetime and in wartime. Indeed, if I may say so, if things go wrong under the new Constitution, the reason will not be that we had a bad Constitution. What we will have to say is that man was vile.”