Diluting provincial autonomy

30 Jun 2019

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The writer is a lawyer, and the host of a television show.
The writer is a lawyer, and the host of a television show.

BILAWAL Bhutto-Zardari, in a comprehensive critique of the federal government and its attitude towards parliament during the recent budget session, once again highlighted the order of transfer of the NICVD, the NICH and the JPMC to the federation by the Supreme Court.

The autonomy gained by the provinces after the passage of the 18th Amendment finds its most vocal critics in those who oppose the workings of the PPP-led Sindh government. As a result of the financial space the amendment created, it is argued that the Sindh government behaves in a totalitarian manner, depriving the local governments of their due share or inefficiently administrates the large amounts of money it now has at its disposal.

Recent Supreme Court decisions concerning the three hospitals located in Karachi and the reversion of those institutions to the federation reflect exactly this underlying sentiment, and have given rise to a debate amongst lawyers regarding the scheme and spirit of our Constitution. It is argued that provincial autonomy has been stripped away in favour of a stronger centre as a result of such judgements.

Lawyers supporting the transfer judgement have explained this interpretation of the Constitution going against its plain and expressed meaning by calling it ‘federalism’. They have created the same barriers to entry to the debate that Islamic scholars have done in the past with religion. You are uninformed about the subtleties of the federal concept, hence incompetent to debate it. You are told to first read the history of the US and the federalist’s great use of its constitutional silences to develop a functioning and cohesive unity.

Thinly veiled is the horror of the shrinking federal pie; it means less money for federally funded institutions.

Federalism, as taken from America, has a romantic history. It has roots in the idea of a progressive-minded minority taking the reins of a country otherwise owned and controlled by a regressive slave-owning elite. Cotton needed a backbreaking effort to harvest, and the slaves that the South so desperately wanted to own were forcibly made to execute this. Enter the federalists, the Hamiltons and the Lincolns, who put right these excesses through ingenious readings of the very bare document that was and is the American constitution.

The Pakistani use of the concept of federalism is to effect nearly the opposite outcome — a centralised and regressive minority seeking to prevent what it feels are childish, unprepared provincial governments from exercising autonomy. The excuse is that these provincial governments are run with less than bona fide intent, or by less-than-capable representatives.

Thinly veiled is the horror of the shrinking federal pie — less money for federally funded institutions and the resulting unacceptable accountability to localised and varied power structures.

The desire to do what’s best for the people drives the best of our public functionaries, including the honourable members of our Supreme Court. The rollback of the 18th Amendment, proving impossible due to a lack of parliamentary and cross-party support, is under way through a dilution by interpretation. In what started out as an interpretation of ‘trans-provincial’, where taxation of any authority operating in more than one province was held to be outside the scope of a single province, a series of judgements appear to have overridden the plain meaning of the Constitution.

Even though the subject of health is in the provincial domain, and the provinces are hence competent to exercise exclusive authority over it as clearly delineated in Article 97, the hospitals in dispute were taken away from Sindh on the premise that they fell under Entry 16 of the Federal Legislative List. The entry allows the federation to run institutes for the purposes of research, for professional or technical training or for the promotion of special studies.

What was held was simply this: because a (very small) part of the resources of the hospitals in dispute were used to conduct research as well as professional and technical training, the entry in the Federal Legislative List included them (the hospitals).

The predominant function of the hospitals providing health services to hundreds of thousands of patients, as succinctly summarised in the dissent authored by Justice Maqbool Baqar, was ignored in favour of the ancillary research opportunities and the chances of professional training these hospital services generated. It is akin to holding that a sugar mill operates mainly to produce ethanol from molasses.

These actions had landed in the Supreme Court courtesy of brilliant judges who think less as members of the apex court of the province, and more as functionaries of a subordinate court of the federation.

These judgements are much more agreeable because it’s so easy to know what’s good for the people of Sindh, which is where the fulcrum of the provincial autonomy challenge pivots. After all, they protect the people from a more autonomous Zardari. It’s almost the right thing to do.

Justice Baqar mentioned the Children’s Hospital, the Institute of Child Health, the Mayo Hospital and the Services Hospital located in Lahore. He highlighted the research and training that are similarly ancillary and ongoing in all the said hospitals without a federal desire to capture their resources from the government of Punjab. He highlighted the Post Graduate Medical Institute established by the KP government as a separate and independent body to the Lady Reading Hospital in Peshawar.

In summarising his searing critique of the expansion of the Federal Legislative List well beyond its meaning to a point where it overstepped the boundaries of the articles of the Constitution itself, Justice Baqar stated: “Disregarding the mandatory provisions of the Constitution and the categorical mandate prescribed thereunder would embolden and encourage those who are averse to the rule of law and have scant regard for the supremacy of law, thereby strengthening those who want to create dissension and discord in our national polity.”

The few educated and experienced seated in power must focus on the smallness of their number rather than the vastness of their wisdom. It takes a two-third parliamentary majority to undo our Constitution. It should not take any less to alter its plain meaning.

The writer is a lawyer, and the host of a television show.

Twitter: @jaferii

Published in Dawn, June 30th, 2019