HOW far can the federal centre intrude into the domain of the states (or provinces in Pakistan's case) while making a law to implement an international treaty it has signed? This issue rocked both houses of India's parliament recently.

The occasion was a bill to implement the UN Convention Against Corruption which was adopted by the UN General Assembly on Oct 31, 2003. India ratified it on May 12 last year. It requires each ratifying states to take specific steps to combat corruption “in accordance with the fundamental principles of its legal system”.

The bill sought to establish an ombudsman at the centre as well as in the states. Known as mohtasib in Pakistan, he is called lokpal in India. The states' ombudsman is called lokayukta . Not only the opposition parties but political parties, each with a strong base in a particular state, objected to the imposition of an ombudsman on the states in the guise, they alleged, of implementing a treaty; in this instance the UN convention, a multilateral treaty.

The problem is not peculiar to India. Every federation has to face it. The Pakistan constitution contains two precise provisions. The Federal Legislative List has a specific entry for 'federal ombudsmen'. It also has another and general entry which reads thus: “External affairs; the implementing of treaties and agreements including educational and cultural facts and agreements with other countries…” Read together the provinces' power to set up mohtasibs in the provinces is not fettered, and the federation's power to establish the institution at the federal level is equally clear.

But the more fundamental question will face Pakistan as it confronts every federation. Can any federal legislation to implement an international treaty prevail over the provinces' power to legislate on a matter admittedly within its own exclusive sphere? Article 143 of the constitution embodies a rule on which the federal structure rests — namely that in the event of a conflict the federal law prevails over the provincial law.

In India, the problem can assume a far graver proportion because Article 253 gives a carte blanche to the centre: “Notwithstanding anything in the foregoing provisions of this chapter (on centre-state relations in the legislative sphere), parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country/countries or any decision made at any international conference, association or other body.”

If the Government of India concludes an international convention on, say, health, parliament will have the power to make any law to implement it despite the fact that the subject falls in the state list. Moreover, it applies not only to a treaty but covers any “decision” made at any international “conference”, association or “other body”.

However, constitutional power is one thing, the realities of federal politics is another, especially in the era of coalitions at the centre whose partners draw strength from the states or provinces and are therefore acutely sensitive to the rights of the federating units.

No government of India could have concluded an agreement with Bangladesh on sharing the waters of the river Ganga in 1996 without the cooperation of the West Bengal government. Its chief minister, Jyoti Basu, visited Dhaka for talks with the prime minister of Bangladesh and lent his support to the agreement.

Last year, a successor, Mamata Banerjee, successfully vetoed conclusion of an agreement on transit rights with Bangladesh. The draft was ready for signature. She was miffed because, she claimed, she had not been properly consulted. Constitutionally, the Government of India could have gone ahead and signed the agreement; politically, it realised, the signature would have led to a futile confrontation with the government of state whose interests were vitally affected.

Political realities should govern exercise of federal power also in other respects besides a state's particular rights. This is true particularly of constitutional amendments. They must be based on a national consensus. The same applies to the signing and implementing of treaties of political significance.

Australia's federation has moved far to accommodate the states' feelings. In June 1982, the states' premiers' conference adopted 'Principles and Procedures for Commonwealth-State Consultation on Treaties'. It fell into three parts: consultation, treaty negotiation process and federal-state aspects.

“The states are informed in all cases and at an early stage of any treaty discussions in which Australia is considering participation”. A detailed procedure was laid down. “Where state interest is apparent, the Commonwealth should — wherever practicable — seek and take into account the views of the states in formulating Australian policy and keep the states informed of the determined policy”.

The document noted that “in particular cases”, a state's representatives are included in delegations to “international conferences which deal with state subject matters”. It observed, “The purpose is not to share in the making of policy decisions or to speak for Australia” but to ensure that the states know what is afoot and are in position “to put a viewpoint to the Commonwealth. However, state representatives are involved as far as possible in work of the delegation”.

In June 1948, the Government of India offered the nizam of Hyderabad a draft 'heads of agreement' on defence, foreign affairs and communications. They were reserved for the Government of India. Paragraph 7 added a qualification: “Hyderabad will, however, have freedom to establish trade agencies in order to build up commercial, fiscal and economic relations with other countries; but these agencies will work under the general supervision of, and in the closet cooperation with the Government of India. Hyderabad will not have any political relations with any country.”

The institution of federation has shown considerable flexibility. It is time that political realities are reflected in the constitutional scheme and a consultative mechanism devised to ensure against crises at home while negotiating abroad.

The writer is an author and a lawyer based in Mumbai.