Pakistan’s post-colonial experience is one of sycophantic acceptance of the western culture, language as superior to the Eastern culture. The British power that once eclipsed more than half of the world has receded to the British Channel, yet our state’s pathology of servile emulation continues with full vigour even to this date; Pakistan is a state that still suffers from severe colonial amnesia. In connection to this, Prime Minister Imran Khan has praised the Chinese system far too often and has emphatically suggested it to be a blueprint for the state of Pakistan. Perhaps, he wishes to replace our Anglican masters with our neighbouring Confucian masters.
Our Prime Minister’s vision of a quintessential Islamic State of Pakistan complementing the Chinese governance structure is a great ideological paradox that deserves separate attention. Nevertheless, the only thing that has grasped his attention is the unrestrained power China’s Communist Party (CCP) enjoys to trammel opposition from within and use it to muzzle the voices of dissent. He may be envious to see that his Chinese counterpart can easily incarcerate his political opposition under the garb of an anti-corruption drive, without being inconvenienced by legal or political repercussions. However, the Prime Minister has missed that CCP’s inclusive policymaking is a central characteristic of its governance system that has allowed it to indisputably remain at the helm of the political structure. A salient feature of inclusive governance is public approval of its policies at the grass-root level, defying a common perception that China completely lacks public participation. The country’s governance structure offers public participation and decentralization at the local level, especially at the Township People’s Congress, County People’s Congress and the Municipal People’s Congress. It is at this most basic level that the public engages in a dialogue with policymakers to decide the policies that accord with them. Ever since Chairman Mao Zedong founded the CCP, the party has consistently adhered to a policy of “Mass Line”, which involves inviting the public from different regions and localities to enact policies through mutual understanding.
Despite years following independence, we are fixated on emulating a country that is pre-dominantly inhabited by one homogenous ethnicity, instead of consistently following the roadmap provided by our Constitution. China’s model involves a degree of decentralization, especially concerning meeting economic and environmental targets, which our Constitution embodies as well. Though the CCP recognises the indispensability of Provincial and Local Governments, our Constitutional system is correctly not predicated on a limited decentralized model, as China. For one, the heterogeneous ethnicities native to Pakistan will find their rights trammelled if the Chinese model is replicated. Second, excessive centralisation of authority ignores the unparalleled advantages that transpire from competition amongst independent Provinces. This allows policymakers to effectively evaluate and adopt only the ideal policies that emanate from this inter-provincial competition. Despite a clear Constitutional prerogative in favour of Federalism, the Federal Government still reminisces the bureaucratic unitary state of Pakistan of the 1950s and 1960s. To our delight, Pakistan has some judges in its judicial ranks, who gallantly defend the Provincial autonomy in the face of a paternalistic Federal Government.
Our Superior Courts have acted as referees, guarding the Constitution against transgressions of the Federal Government in usurping the functions of the Provincial Government. Courts have tended to adjudge the boundary of Federal and Provincial territory on the touchstone of legislative competence according to the Federal Legislative List contained in the Constitution. This involves an exercise, whereby Courts analyse whether the subject matter of a legislation in question is covered by any of the legislative subject entries in the Federal Legislative List to the Constitution. Through the tools of Constitutional interpretation, if the Court finds a law to be covered by the Federal Legislative List, then the said law is validly declared a Federal law. On the other hand, if the relevant law is not covered by the Federal Legislative List and is nonetheless passed by the Parliament, it is declared a bad law, as it was supposed to be passed by the Provinces and not by the Parliament in Islamabad. However, recently the Lahore High Court in the case of Vice Chairman Punjab Bar Council v. Government of Punjab took a step further.
By giving a wider meaning to what transgressing the Constitutional boundary means, the impact of this decision is that the Federal Government and Parliament do not need to positively commit acts that are wholly within the domain of the Provinces, even a slight suggestion by the Federal Government to the Provincial Governments that the Court finds patronising or paternalistic will be struck down for being dictatorial legislation or action.Â
In this case, the Court declared that the Federal Government cannot direct the Provincial Government into following any policy; to do so would be dictating the Provincial government and curtailing its autonomy. Though the Court could have said that any such direction would be a non-binding suggestion or “directory in nature”, and by doing so it could have saved the Ordinance from being declared illegal. Nevertheless, the fact that the Honourable Court did not, strongly manifests its intolerance towards the Federal Government transgressing its Constitutionally permissible domain. The Court emphasized that Federalism is not just an abstract concept of governance, rather it is inextricably linked to the Fundamental Rights of the people, who have elected their chosen representatives in the Provincial Assemblies. The fact that people cast separate votes for the Provincial Assembly and the National Assembly in a given constituency evokes a degree of expectation in the constituents that their chosen representatives at both levels will operate independently; it is least expected that the Provincial Government will be a mouth-piece of the Federal Government. By giving a wider meaning to what transgressing the Constitutional boundary means, the impact of this decision is that the Federal Government and Parliament do not need to positively commit acts that are wholly within the domain of the Provinces, even a slight suggestion by the Federal Government to the Provincial Governments that the Court finds patronising or paternalistic will be struck down for being dictatorial legislation or action.
Judgements rendered by Courts are not infallible and always leave vast space open for debate; they endure in the consciousness of the people by constantly conversing with the Society at large. Though there are some undeniable shortcomings of this judgement, the trail of past post-Eighteenth Amendment cases has attempted to dilute the effect of the amendment; this judgment is a small step towards emancipating Federalism in Pakistan.
