| 16 May 2004 | Sunday | 25 Rabi-ul-Awwal 1425 |
Two episodes to remember
I argued in my article last Sunday that the advocacy for a confederation arises from the feeling that our current political system does not safeguard provincial rights and interests. How may we characterize this system?
The Constitutions of 1956 and 1973 declare that Pakistan "shall be a Federal Republic." A federation comes into being when certain already existing political entities come together (e.g., the US), or are brought together (e.g., Canada under the British parliament's North America Act of 1867), to form a union, invested with a government of its own, to serve some of their designated common needs and interests.
Functional jurisdictions of the governments at the two levels are demarcated in a written constitution and, apart from specified shared functions, each side has exclusive charge of those it has been allotted.
The passage to federalism in British India involved a transfer of certain functions from the central to the provincial governments. India and Pakistan came into being as independent countries by an act of British parliament, namely, the Indian Independence Act (July 18, 1847). They became federations by virtue of their respective constitutions.
The American constitution stipulates that all functions and powers not specifically allocated to the federal government remain reserved to the states. This was intended to retain vitality at the state level. The Canadian constitution, on the other hand, reserves residuary powers to the central government, showing a bias in favour of a "strong" centre.
The placement of residuary powers does not appear to have had any special significance in India and Pakistan, for the lists of specifically assigned functions and powers were so exhaustive as to have left little unaccounted for.
The management of defence and foreign affairs (including issues of war and peace and regulation of foreign trade) belongs to the central government in all federal systems. Other functions commonly placed in its jurisdiction are: citizenship, admission to and residence in the country, currency, weights and measures, postal services, regulation of inter-provincial commerce, national highways, levying of named taxes and excise duties, internal and external borrowing, suppression of domestic insurrections, and police power to enforce federal laws.
A quick look at the centralizing trend of the Canadian constitution may be useful. The centre and the provinces share responsibility for agriculture, health care, and law enforcement. Judging by the central and provincial expenditures on the "protection of life and property", it seems that the centre bears the main responsibility for enforcing criminal law.
The central government may raise revenues by any mode of taxation it deems fit and it pays subventions to the provinces. It appoints provincial governors and the upper echelons of provincial judiciary, and it may veto provincial legislation.
In Pakistan, the 1956 Constitution allocated 30 functions to the federal list, 19 to the concurrent and 94 to the provincial lists. The following items in the provincial list would appear to have been the more important: maintenance of public order, police, administration of justice (courts), preventive detention (in cases involving threat to public order), agricultural land and related matters, local government, education, public health and sanitation, amusement and entertainment, water management, railways and provincial roads, electricity, industries, minerals, lotteries and gambling, intoxicants, zakat and religious endowments.
The centralizers among the framers of this Constitution may have held back in order not to further aggravate the provincial autonomists in East Pakistan. Following its secession, the framers of the 1973 Constitution (Zulfikar Ali Bhutto and his lieutenants) let go of inhibition and proceeded to trim provincial authority as much as they thought possible. They excluded the provincial list of powers and functions from this Constitution.
One would have to deduce the exclusively provincial jurisdiction by looking for exceptions in the federal list: for instance, seeing that agricultural land and related matters were placed beyond federal concerns, one would conclude that they had been left to the provinces.
Federal powers and functions under the 1973 Constitution have been enlarged by discovering new subjects for government regulation, transferring functions assigned to the provinces under the 1956 Constitution to the federal list, and shifting some others in the same category to the concurrent list.
The more consequential transfers in this last category included education (policy, planning, syllabuses, standards, and systems), printing and publications (newspapers), electricity, preventive detention (related to public order), police establishment, powers and jurisdiction of courts, zakat and religious endowments (auqaf), motor vehicles, and the professions (especially law and medicine).
These transfers did not imply complete denial of jurisdiction to the provinces. But since federal law overrides the provincial (Article 143), the placement of these subjects on the concurrent list did have the effect of making federal authority over them preeminent.
The government's regulatory authority may also be found outside the legislative lists. For instance, Article 243 authorizes parliament to prescribe the maximum limit as to any class of property that a person may own, hold, or control. It may also declare that an industry or business shall be owned and carried on exclusively by the government or one of its agencies.
Federal functions and powers have expanded even further as a result of the changes decreed during the first three years of General Musharraf's rule. For instance, local governments, which form part of the provincial jurisdiction in every other federal system, have been placed under central control.
Even more important than the formally prescribed jurisdiction is the source of funding a government needs. In Pakistan, the more lucrative sources of revenue have been taken by the centre. They include income tax, corporate taxes, customs and certain excise duties, export duties, surcharge on oil and gas, tax on the productive capacity of industrial plants and other enterprises, wealth tax, death duties and inheritance tax, and general sales tax, among others.
The provinces must make do with land revenue and any agricultural income tax they may impose, property tax (which normally goes to municipalities), taxes on alcoholic beverages, other intoxicants, and gambling (all of which are banned and therefore largely barren as sources of income), sales tax on food served in restaurants, entertainment tax (which has been dwindling because cinema houses, unable to compete with television and videos, have been closing down), registration fees for motor vehicles, and "stamp duty" for certification of certain documents and registration of certain transactions.
In addition to their own collections, the provinces receive a proportion of the federal "divisible pool," made up of the proceeds of specified federal taxes and levies, and settled periodically by the National Finance Commission.
The size of the provincial share, and the scheme for dividing it, are often in dispute between the provinces and the centre and among the provinces themselves. At the time of this writing the central government is willing to transfer 47 per cent of the pool to the provincial governments, but the parties concerned have not reached agreement yet either on the amount to be transferred or the scheme for dividing it.
In terms of the formal division of powers and functions, our governmental system is probably no more centralized than the Canadian. But the Canadian provinces, other than Quebec, have not been agitating for a greater measure of autonomy. Our system is much too centralized because a substantial part of the population in three of its four provinces, and its political spokesmen, say that it is.
They reject the status quo, and from time to time they speak of separatism, secession, and another dismemberment of the country. What would be wrong with limiting our federal government to defence, foreign affairs, regulation of foreign trade, communications and national transportation systems, postal services and telecommunications, census, and such other common needs that the provinces cannot meet separately? Nothing that I can see.
The case for centralization has traditionally rested on three assumptions; all of them unwarranted. First, there is the assumption that the country will fall apart in the absence of a "strong" centre. Our own historical experience has shown that such a centre is a dissolvent, much more than it is a cementing factor, for national integrity. Second, it is assumed that uniformity is somehow more beautiful than diversity.
Uniformity may be forced through "blood and iron," or it may emerge through the voluntary intermingling of those concerned. It is unwise to enforce uniformity; the greater the vigour with which such a policy is pursued, the more it is likely to fail.
Third it is assumed that superior talent in the country will be more inclined to serve the central than the provincial government. If so, that is because it is the centre where the greater power and engaging "action" reside. But if the same happened to be located in the provincial government, then that is where the talented men and women will want to be.
The Canadians do not agitate for provincial autonomy partly because their central government is good and decent. Not only is it democratic, respectful of the individual's rights and dignity, it is competent and delivers a great many needed services to its people.
Our central government, on the other hand, has done nothing during the last 57 years to endear itself to us. With the passage of time, it has become even more corrupt, incompetent, and yet arrogant. It does little by way of providing services and making our lives easier or more fulfilling. No wonder then that it generates disaffection.
Yet, the fact remains that if we want our country to remain whole, we cannot do without a central government. We can get away from the dysfunctional notion of a "strong" centre. We need an effective government, but one limited to specifically assigned functions acceptable to the political elite in the provinces.
To begin with, the provincial list (similar to the one placed in the 1956 Constitution) should be restored, the federal list drastically pruned of all items that the provinces can handle on their own, and the concurrent list similarly reduced or abolished.
Second, sources of revenue, commensurate with their functions, should be assigned to the provinces. Third, the federal government should take real (not just cosmetic) measures to reform itself.
The writer is professor emeritus of political science at the University of Massachusetts at Amherst, US. E-mail: anwarsyed@cox.net
Two episodes to remember
Two unrelated events in the past few days have demonstrated that the country's notoriously low level of tolerance in religion and politics has fallen even lower. The mosque massacre in Karachi and the Shahbaz Sharif episode that gripped Lahore should cause President Musharraf some pangs of dismay at seeing how his alliances and desires have undermined his "enlightened moderation".
The ministers and fanatics may have won their rounds against their respective opponents and "heretics", but it is the people and the state that have lost as intolerance has dug even deeper roots.
Places of worship have been attacked before with more deadly effect but the attack on the mosque of the Sindh Madressatul Islam has a special poignancy. Though named after Islam, this madrassah for 120 years has stood as a monument to communal harmony. It was sponsored by a Muslim but the British rulers and their subjects of all faiths contributed to its construction and management.
The British, Jews, Zoroastrians, Hindus and the Sikhs besides the Muslims were among its teachers and the taught. Thomas Henry Vine, an Englishman, was its headmaster for 19 years in the early part of the last century. It has been a long journey from colonial India to Islamic Pakistan where a madrassah now conjures up the image of a place bristling with bigots and weapons.
Along with the news of the explosion in the madrassah's mosque that killed 19 people (the number keeps rising) and injured many more, the newspapers of the day also carried a warning by the prime minister to the culprits that they would not escape a swift and exemplary punishment. But another independent story on the same day made the warning sound ludicrous.
Over 17 years, explosions in Karachi, it said, had taken a toll of 350 lives - 100 in the year 2003 alone - but not a single person was ever tried or punished. The message in these figures for the harbinger of moderation and good governance, General Musharraf, is clear that militancy is on the rise and that law and order have broken down.
One can go back even further. Since September 1948 (the month and year of Jinnah's death) when Maj. Dr Mahmud was bludgeoned to death by a frenzied mob, hardly any sectarian killer has been brought to book. It was a public road and witnesses were many, yet the administration squirmed for Mahmud was identified as an Ahmadi. A daylight crime went untraced only because of the religious affiliations of a member of a small minority.
For that calculated inaction, thousands of people belonging to bigger minorities and even to the "great majority" have since paid with their lives. The gory cycle goes on. At Sindh Madressatul Islam last week it took its most poignant turn. An old citadel of tolerance has been breached by new bigots. The place which in 120 years had not seen a brawl will now be remembered for mass slaughter. The Sunni and Shia mosques stand side by side in the compound of the madrassah. The Sunnis who wish to pray there and not five times a day join the congregation at the Shia mosque.
The Nawab of Junagadh built a mosque for the Sunnis in 1893. The Mir of Khairpur soon followed to build one alongside for the Shias. That is the kind of sectarian rivalry our present-day maulanas and muftis need to emulate, and not of those who kill members of the other sect.
Both mosques in sturdiness and magnificence match the madrassah building. The explosion was severe enough to kill and maim a hundred people but the mosque building, the incumbent principal Mohammad Ali Sheikh reports, has remained practically unscathed. The tragic event thus contains a message for our architects, engineers and contractors as well. Our professionals and divines alike should try to follow the standards of their forerunners who lived in times that they consider wicked and secular.
Everyone has a lesson to learn but the responsibility of putting an end to sectarian violence lies with the state. Violence has grown because of state policy and will continue to grow till that policy is reversed. Its superficial reversal by General Musharraf has only made it worse.
While he condemns sectarianism, the support to his political career comes mainly from the sectarian parties and from the obscurantists in the Muslim League factions and other smaller parties. They made his election as president possible and even today are rallying to extricate him from the Waziristan morass.
Paradoxically, the politicians who could have supported his liberal thinking in matters religious and political, and endorsed his secular outlook in everyday matters (economy and education, for example) are being put behind bars or chased out of the country.
We tell the world powers that they should deal with the causes at the root of terrorism and not with its manifestations - the bombings in Palestine and Kashmir for example. But we refuse to follow that principle in dealing with religious violence at home. The killers will strike again. One only hopes that the next attack will not be too soon and that it will be less deadly.
Violence will persist so long as sectarian elements aspire to capture state power. Every religious party is necessarily parochial and cannot but be sectarian. That is borne out by experience. All armed and marauding outfits are born of religious parties which, while they may not be violent themselves, subscribe to a sectarian membership.
Liberal and progressive forces need to gather on one platform to drive orthodox elements back to the seminary where they were till General Zia by design, and now General Musharraf under compulsion, gave them a free run in the political field. A national reconciliation conference held at Dubai open to all parties and their fugitives and renegades could help in achieving this aim.
By now, General Musharraf surely knows that governing the country is not possible without like-minded political groups backing his policies and competent service cadres implementing them. Politicians hostile to Musharraf should also know that he is not going to go away. Reconciliation at the moment is an option better than confrontation for both. The gain to the country will be incidental, though enormous, for in the power struggle of the leaders it is the welfare and safety of the people that is at stake.
The way the Shahbaz Sharif affair was handled by the federal and provincial administrations (the president too, the press said, was kept posted of the minute-to-minute developments) leaves one wondering whether it could have been bungled more. No account of the events of May 11 and the preceding week even remotely bears out the contention of the government's information minister and spokesman that it was a B grade leader in transit from London to Jeddah, causing no worry to the administration.
It was an unintelligent remark considering that the whole world was watching, the media corps was commenting and the reporter and cameraman of the BBC were on the spot, jostled and shut up. May be Shahbaz Sharif was just a B grade leader, but no longer.
The government lawyers had conceded and the Supreme Court had ruled that Shahbaz Sharif could "come back from abroad subject to the laws of the country." The condition need not have been stated for every citizen indeed has to obey the laws of the country. Shahbaz Sharif had said repeatedly in courts and outside that he would.
Then, the Lahore High Court would not hear Shahbaz Sharif's bail petition till he surrendered himself to the court. The government would not let him enter the country to surrender. It would be interesting to hear how rival counsels deal with this riddle in the Supreme Court. One wishes it is S.M. Zafar for the government against Hafiz Pirzada for Shahbaz Sharif.
While defending their clients they will have their legal integrity also at stake for both, being officers of the court, are bound by the ethics of their profession to help the court interpret the law correctly, sensibly and humanely. As of now, the relatives of those who died in the mosque attack continue to grieve while the ministers gloat at home and Shahbaz Sharif sulks abroad. Meanwhile, the image of Pakistan as a tolerant society has plunged to new depths.