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The recent coronavirus crisis has resurrected the debate about the 18^th Amendment. Ironically, the debate has centred around the different public health responses of the provinces in dealing with the pandemic despite the fact that public health has always been in the realm of provinces from the Government of India Act, 1935, in British India through all the three constitutions of Pakistan. It is sad that centrifugal forces in Pakistan are still considered so strong that something which has not been questioned for nearly a century is being instrumentalised to lead to enhanced centralisation in Pakistan.

Federalism has been a catch word in South Asia for nearly a century, yet it is still poorly understood. At a very simplistic level it is rooted in the concept of autonomous units (be they colonies, provinces, states etc) which come together to form a central i.e. ‘federal’ government with certain defined powers delegated to it. In such a system, powers flow from the units to the Centre.

In the case of South Asia, the experience both in India and Pakistan has been the opposite. Rather than autonomous provinces coming together to create a federation, the experience of British India was that the central government tried to create a federation with the Centre devolving powers to the provinces. Thus, the Government of India Act, 1919, created ‘dyarchy’ which devolved a few powers to the provinces while the more comprehensive Government of India Act, 1935, created nearly fully responsible provincial ministries, so much so that their heads of government in the provinces were called ‘premiers’ i.e. prime ministers.

The creation of a quasi-federal system in British India was due to two reasons: First, it eased the pressure on the central government to give up its coveted powers of defence, foreign affairs and communication, and postponed its democratisation while the provincial ‘experiment’ was being carried out. Secondly, by the turn of the twentieth century the British had realised that India was too big to be ruled from the Centre and that some sort of decentralisation had to be enacted. Already the three presidencies enjoyed a certain degree of autonomy, and the size and populations of the other provinces also demanded more devolution making it, in effect, easier to control from the Centre.

The Government of India Act 1935 created three lists for legislation: federal, provincial and concurrent. The federal and provincial governments had competency over their respective lists while the concurrent had overlapping jurisdiction with the federal one gaining precedence in case of a conflict. The federal government could only override the provincial list in times of national emergency which then had to be ratified by the Westminster parliament. As a first, it was a rather bold experiment, with the federal list containing 59 subjects, the provincial one 54, and the concurrent one 25 subjects.

Significantly, the demand for Pakistan was itself tied to the idea of federalism. The All India Muslim League clashed with the all-India vision of the Indian National Congress precisely on the different approach towards federalism. Where the Congress wanted a strong Centre, the Muslim League championed the case of autonomous provinces. In fact, when in 1946 the Quaid-i-Azam accepted the Cabinet Mission plan, it was because it accepted the radically federal demand of the Muslim League where the Centre would only control defence, foreign affairs, communications and currency, together with the powers to raise money and maintain these subjects, while all other powers would be held by the provinces. The non-acceptance of this federal principle by the Congress then led to the partition of British India and the creation of Pakistan and Bharat in August 1947.

At its creation, Pakistan adapted the Government of India Act, 1935, as its interim constitution. It was a sensible decision since with the country divided in two wings over a thousand miles apart, a centralised government would not have been workable in any case. Thus, from its inception Pakistan was federal. However, very soon the federal government began to encroach upon the powers of the provinces. In March 1948, for example, sales tax was removed from the purview of the provinces and moved to the Centre. Similarly, provisions of the concurrent list slowly became the sole purview of the federal government. The federal government also began to interfere in the workings of the provincial governments through emergency provisions and kept on dismissing and appointing governments. Thus, even though Pakistan legally remained a ‘federation’, it was practically being run as a centralised state by the end of its first year of existence.

Even though Pakistan legally remained a ‘federation’, it was practically being run as a centralised state even by the end of its first year of existence.

Keeping in view the strong feelings over autonomy in various provinces, the first constitution of Pakistan in 1956 did attempt to increase the purview of the provinces in the legislative lists. Hence, the federal list came down to 30 subjects, while the concurrent one was limited to 15. In contrast, the provincial list was expanded to 94. But the lowering of the number of subjects was largely illusory as a number of the removed subjects related to British-specific provisions and also resulted from the consolidation of a few entries. In reality, though, the central government rarely permitted the two provincial governments from exercising their full powers. Also, before the 1956 Constitution could be actually enforced after a general election, it was abrogated and the country put under martial law.

The 1962 presidential constitution ‘enacted’ by President Ayub Khan also kept the basic federal framework of the country. Under its provisions there was only one list, the federal list in the third schedule, where the number of subjects had now increased from 30 to 49. The provinces were thus given all the ‘residual’ powers for the first time in the history of Pakistan. However, this autonomy was largely chimerical as Article 132 of the constitution severely circumscribed the powers of the provincial legislatures. According to its provision, the federal government could make any law ‘in the national interest of Pakistan’, especially which related to ‘the security of Pakistan, including the economic and financial stability of Pakistan’, ‘planning or co-ordination’, and ‘the achievement of uniformity in respect of any matter in different parts of Pakistan’. This overriding provision meant that provincial autonomy was merely in name and that the central government, especially through its five-year plans, kept a tight control over provincial governments.

The constitution of 1973 came in the wake of the breakup of Pakistan on the question of provincial autonomy. Contrary to popular opinion, the 1973 Constitution was not as federal as the 1956 one, and was only marginally better than the 1962 one. While it recognised the federal principle, it reinstated the concurrent and provincial lists, thereby limiting provincial rights. It also put in the concurrent list some subjects which had always been in the provincial list.

It is interesting to note how certain subjects have fared under successive constitutional schemes. For example, sales tax began with being on the provincial list in 1935, was taken over by the federal government in 1948, continued to do so under all three successive constitutions of Pakistan, and only after the 18^th Amendment its application on services only was moved to the provinces. Being a major source of direct revenue, it has a significant impact on the powers and functioning of the provincial governments.

Similarly, the trajectory of education is very interesting. It started firmly as a provincial subject in 1935, remained a provincial subject in 1956 and 1962, but was moved to the concurrent list in 1973, and even after the 18^th Amendment was split between the Centre and provinces in such bizarre a manner that debate over it continues. Railways also have an interesting history, starting as a federal subject (except minor railways), becoming a provincial subject in 1956 and 1962, and then returning and persisting as a federal subject in 1973. Perhaps the existence of two different wings of Pakistan necessitated such devolution, but even then it was a significant legal step in both 1956 and 1962 to move it completely to the provincial list.

A curious case is that of electricity, which was a provincial matter in 1935, remained a provincial subject in 1956 and 1962, was moved to the concurrent list in 1973 and then, very significantly, moved to the federal list under the 18^th Amendment. No wonder it remains a contentious subject between the Centre and provinces even now.

While the 18^th Amendment has made Pakistan federal in some subjects, in others it has restricted the role of the provinces. It has enhanced the revenue generating power of the provinces by transferring sales tax on services and all taxes on immoveable property to the provinces, but they still fall short in matching the needs and demands of the increased number of subjects under the provincial purview. The National Finance Commission award has attempted to reset the balance between the provinces and the Centre by allocating the majority of revenues to the provinces to deal with the new subjects, but that is more a result of a separate negotiation than the result of more fiscal powers for the provinces.

Since 1947, Pakistan has had a very complicated relationship with federalism. While the creation of the country demanded it, the reality of it becoming a security state constantly undermined it. Where giving more power to the provinces could bring down feelings of neglect and deprivation, the loss of power at the Centre raised questions of national unity and cohesion. From the Government of India Act, 1935, through the constitutions of 1956, 1962 and 1973 and now to the 18^th Amendment, several ways have been devised to distribute power between the Centre and provinces to continuous debate, and it seems that it is destined to continue. Everyone agrees to a federal Pakistan, but there is no consensus on what it actually means. 

The writer teachers at the IT University in Lahore He is the author of A Princely Affair: The Accession and Integration of the Princely States of Pakistan, 1947-55 . He tweets at @BangashYK teach