IN Pakistan and in India the trend towards increase of power by the federation has been reversed. It is now unmistakably towards greater power for the federating provinces or states. This is a result of political changes rather than constitutional amendment by itself. The 18th Amendment to the Pakistan constitution was a product of political change.
Initially both federations emulated the federal structure established by the Government of India Act, 1935. Later, they followed different routes. Nowhere is this more apparent than in regard to the Inter-Provincial Council set up by Section 135 of the Act. It was blindly copied in Article 263 of the Indian constitution which was adopted by the Constituent Assembly without debate on June 13, 1949.
It empowers the president to establish by an order an Inter-State Council charged with the duty of “(a) inquiring into and advising upon disputes which may have arisen between states; (b) investigating and discussing subjects in which some or all of the states, or the Union and one or more of the states, have a common interest; or (c) making recommendations upon any such subject and, in particular, recommendations for the better coordination of policy and action with respect to that subject”. The order could define its organisation and procedure as well as “the nature of the duties to be performed by it”.
While a few bodies on specific subjects were set up, the Inter-State Council as envisaged by Article 263 was established in 1990, 40 years after the constitution was enacted. The order establishing the council emasculated it calculatedly. It could be convened only by the centre which would also lay down the agenda. Small wonder that it has failed to make the slightest impact on India’s federal system.
Article 130 of the 1956 Pakistan constitution contained a similar provision but with two vital differences. The Inter-Provincial Council could not be set up except “with the consent of the governors of the provinces” and it could not concern itself with disputes between the provinces.
Section 135 of the Government of India Act 1935 was the considered product of deliberations on the proposed federation at the roundtable conferences in London. Para 226 of the report of the joint committee of both houses of the British parliament on Indian constitutional reform (1934) explained the raison d’être of the council. “There will be necessarily many subjects on which inter-provincial consultation will be necessary, as indeed has proved to be the case even at the present time; and we consider that every effort should be made to develop a system of inter-provincial confederacies, at which administrative problems common to adjacent areas as well as points of difference may be discussed and adjusted.”
There were “a number of matters on which it is, in our view, important that the provinces should coordinate their policy … if departments or institutions of coordination and research are to be maintained at the centre in such matters as agriculture, forestry, irrigation, education and public health and if such institutions are to be able to rely on appropriations of public funds sufficient to enable them to carry on their work, the joint interests of the provincial governments in them must be expressed in some regular and recognised machinery of inter-governmental consultation”.
Pakistan’s 1973 constitution made a wise break from Section 135 of the Act of 1935. Article 153 establishes a Council of Common Interests to be set up by the president. Its members shall be chief ministers of the provinces, and equal number of members from the federal government, nominated by the prime minister who shall be its chairman. It would decide by a majority and will be responsible to parliament. If the federal or a provincial government is dissatisfied with a decision of the council it may refer the matter to parliament in a joint sitting “whose decision in this behalf shall be final”.
The council’s remit was to “formulate and regulate policies” in relation to matters in Part II of the Federal Legislative List.
Every federation has a structure suited to its needs and accordingly its own federal council to coordinate federal and provincial policies. For example, Articles 91(a) and 91(b) of Germany’s basic law define how the federation can share the responsibilities of the provinces in some matters — higher education, regional economic structures and agricultural structure and coastal preservation. This will be pursuant to a law with the consent of the upper house of parliament to which provincial governments send their representatives.
By now federal theory has moved far beyond its old moorings. The crucial test is partnership in nation-building. The centre and the units have their respective roles assigned by the constitution. But unless each plays its distinctive role in a proper spirit federalism will descend into a framework for an adversarial relationship. In Canada and in Australia the provinces have acquired greater power by a national compact binding alike on the centre and the provinces. This does not imply that politics should take a holiday. That is impossible. Political warfare can continue but with each side realising that it must stop where national unity is in peril.
As Prof Peter H. Merkl remarked, practice has rendered theories of federalism obsolete. Rather than pitting state’s rights against central power, the trend in the US, Canada, Australia and Europe has been towards sharing and cooperation in services and planning.
While the federal governments, without a doubt, have increased their power in certain areas, state governments have also gained new functions. “States and local agencies, in particular, have developed ways of participating in the planning and administration of many of the federal activities which at first glance appear to intervene so drastically in their internal affairs.” But this requires central initiative and leadership in fashioning a truly cooperative federalism.
The writer is an author and a lawyer.