With the concurrent legislative list set to be abolished by the 18th Amendment, provincial autonomy will be enhanced — at least that's the claim of the parties championing maximum autonomy for the provinces.
But will it? Let's start with the basics.
What's a federation? For our purposes, it is enough to describe it as a multi-tier system of government there is a centre, Islamabad, and there are constituent units, the provinces. The opposite is the unitary state, where, as the name suggests, there is only one tier of government.
The immediate question when you have two tiers of government who does what? The smallest federal government is, theoretically, limited to defence, currency and foreign affairs; the largest could be, well, everything, leaving only a handful of local issues to the provincial governments.
On to 'concurrency'. Of the 25 federal countries in the world, most have an area of legislation where both tiers of government have the competence to legislate.
Why? Over to Wasim Sajjad “In some areas, it has been found useful to keep the power (to legislate) with both tiers. One reason is uniformity all parts of the country can have, for example, the same environmental law. Another reason is to provide a 'lead' to the provinces; we don't yet have all the competencies at the provincial level that are available at the federal level.”
The 1973 Constitution enshrined 47 subjects in the Concurrent Legislative List. The 18th Amendment will abolish that list.
Here's a sample of what the list contains “5. Marriage and divorce; infants and minors; adoption”; “6. Wills, intestacy and succession, save as regards agricultural land”; “17. Arms, firearms and ammunition”; “24. Environmental pollution and ecology”; “25. Population planning and social welfare”; “42. Tourism.”
Going through the list of 47 subjects, it is difficult to find anything that would unambiguously enhance provincial autonomy if legislative control were to be handed over exclusively to the provinces.
Even if you consider the bigger ticket items (for example, “trade unions; industrial and labour disputes”) it is not clear what differences Sindh, Balochistan or NWFP have with Islamabad's prescribed laws.
So why demand the abolition of the concurrent list?
I asked Kaiser Bengali, who is in favour of the list being abolished. He suggests the reason is the smaller provinces are wary of an ever-growing federal government that has used the concurrent list to expand its reach and size.
The explanation is echoed by Zain Sheikh, a constitutional law lecturer in Karachi, who also supports abolishing the concurrent list “Unless some (federal) ministries are shut down, the whole exercise would be futile.”
It seems that the fear of a big, powerful, overreaching federal government has driven political parties from the smaller provinces to do the only thing that seems obvious cut its powers. Whether abolishing the concurrent list will in fact enhance provincial autonomy appears to be beside the point.
But such logic incenses Asif Ezdi, a former member of the foreign service, who claims that the “great gift of a single legal system” the British had given us is being thrown away for “dubious political gains”.
“The federal government may not even shrink much,” according to Ezdi. “At most federal ministries like labour, health and environment may now be disbanded.”
Wasim Sajjad isn't even sure that will happen “Remember there is still the federal capital territory and in any case the federal government will need to interact with foreign governments and agencies on these issues.”
But even if Ezdi's and Sajjad's predictions are confirmed, what's the harm in giving the provinces the exclusive right to legislate over the 47 subjects in the concurrent list?
Let's go back to entry 5 in the concurrent list marriage and divorce; infants and minors; adoption.
Consider the hypothetical marriage in Quetta of a woman from Karachi and a man from Peshawar. With marriage to become a provincial issue, each province could have its own laws governing the institution.
So which province's law would apply to the couple and could the bride and groom reasonably be expected to understand the differences? The consequences could be severe imagine a scenario in which a conservative provincial government has overhauled marriage laws that will impact women adversely.
Wasim Sajjad pointed out it makes no sense to have five legal systems (one each for the provinces and the centre) or five regulatory authorities for medical licences.
In a nod to this, the Raza Rabbani committee has all but conceded a 'soft' concurrent list of sorts.
Article 142(b) will, after the 18th Amendment, read “Parliament and a Provincial Assembly shall have power to make laws with respect to criminal law, criminal procedure and evidence.”
Criminal law, criminal procedure and evidence are entries 1, 2 and 4 in the concurrent list, so after the list is abolished the country could have had five separate criminal law codes, criminal procedures and evidence laws. The new Article 142(b) will prevent that absurdity.
Similarly, some concurrent list issues (“legal, medical and other professions”; higher education standards; etc.) have been 'rescued' from the provinces exclusive domain by putting them under the Council of Common Interests.
Kaiser Bengali went further “Devolving environment is not a good idea. Maybe the four provinces will have to pass resolutions asking the centre to continue overseeing this area.”
So why argue for the wholesale abolition of the concurrent list when it clearly makes more sense to leave some things in there?
The answer lies in the negotiating process “Item by item there would never have been an agreement,” said Kaiser Bengali.
So there you have it, the end of an institution that everyone seems to think was a good idea legally, but somehow its abolition became a rallying cry for provincialists and will now be ritually sacrificed by the 18th Amendment.
“Provincial autonomy is all about control over resources and more finances and revenues for provinces,” argued Wasim Sajjad. “The concurrent list has little to do with any of that.”