Federalism and local governments …. Sara Malkani
THERE is a fear in some quarters that attempts to strengthen local government constitute a ‘rollback’ of the 18th Amendment provisions expanding provincial autonomy. This was expressed in a statement on Dec 4 by the PPP’s Senator Raza Rabbani, who said that the purpose behind such moves “is to make provincial governments redundant”. On the other hand, PML-N’s Ahsan Iqbal has said that strengthening local government is the ultimate goal of the devolution process. According to Ahsan Iqbal, the “spirit of the 18th Amendment” requires that power be taken down further to the grassroots“.
Why do the two parties express such different understandings of the principle of federalism believed to be encapsulated in the 18th Amendment?
The 18th Amendment expanded the range of domains over which provinces have exclusive decision-making powers. The 18th Amendment also inserted Article 140-A in the Constitution which requires that provincial governments ‘devolve’ powers to local governments. Differences persist over the extent to which the 18th Amendment grants local governments the right to take independent decisions untrammelled by a central or provincial authority.
These differences stem in part due to a conceptual confusion regarding the meaning of federalism, one that is very common in political discourse across Pakistan. US political scientists Malcolm Feely and Edward Rubin define federalism as a compromise between different political units, each with distinct political identities, to come together under a larger unit while retaining autonomy over specific domains of governance.
In light of the nature of federalism in Pakistan, Article 140-A should be interpreted in a way that gives the provinces power to override LG decisions.
What is the rationale behind federalism? It is an arrangement that allows groups with different political identities, and relatedly, different political goals and priorities, to come together under a central authority while retaining exclusive control over some spheres. These sub-units claim a certain degree of autonomy against the central authority as a matter of right.
In Pakistan’s constitutional framework, what are the autonomous sub-units that constitute the federation? To answer this question, we should look to the constitutional history of Pakistan to identify the sub-units with a distinct political identity that have come together to form the federation.
One belief, supported in my view by historical and political realities, is that it is the provincial sub-units that constitute Pakistan’s federation. Provincial autonomy was a significant political priority for the framers of the 1973 Constitution in the wake of the violent dismemberment of the country in 1971 due to discontents of the largest political sub-unit (East Pakistan).
Each provincial unit in present-day Pakistan also has claim to a distinct political identity based on the ethnic and linguistic majorities residing in the province.
Under this view, provinces may assign decision-making power to local bodies over some domains, but provinces will retain the right to override decisions of local governments. If provinces are recognised as the sub-units constituting the federation with a claim to limited autonomy as a matter of right, they will not be subject to any requirement from a central authority that they relinquish powers to another unit within their territorial domain.
Another competing view is that local governments should be deemed the autonomous sub-units with overriding powers in some spheres. To assess this claim against the definition of federalism proposed here, we would have to ask whether local bodies constitute distinct political identities with a claim to autonomy against the central and provincial authority.
Local bodies in Pakistan — cities, towns, villages, etc — do not typically claim a distinct political identity. Rather the political identity of these local bodies is, in general, subsumed by the identity of the province in which they are located.
In light of the nature of federalism in Pakistan, Article 140-A of the Constitution should be interpreted in a way that retains the autonomous power of the provinces and gives them power to override decisions of the local government.
This is not, however, how the Supreme Court interpreted Article 140-A in its judgement of 2022 where it held that provincial governments cannot take away powers of the local government by “executive fiat”. The Supreme Court declared that provisions in the Sindh Local Government Act of 2013 allowing the provincial government to “take over the management and control of any institution or service” maintained by a local body contravene Article 140-A of the Constitution.
There is a strong case to be made that this interpretation of local government powers goes against the rationale behind federalism in Pakistan, which is to recognise the autonomy of provinces to run many of their own affairs and to override the decisions of both the central authority and any local government authority within their territorial control.
The nature of federalism, given the history of the country and its constitutional framework, runs contrary to claims by some political constituencies that autonomous local governments embody the true spirit of the 18th Amendment.
Interestingly, arguments advanced most often in support of local government autonomy do not, in fact, rely on federalist principles. A common argument is that devolution of powers to local bodies encourages political participation as it brings democracy to the grassroots. This is not an argument in favour of federalism — rather it is an argument for decentralisation.
In fact, local governments can be very empowered in non-federalist systems. Unitary states, such as France, have powerful local governments as an essential feature of their administration.
However, this does not make France a federalist state because the central authority retains overriding powers to set policy goals for the entire country while giving some freedom to local governments to implement policies. Neither decentralisation nor greater political participation at the grassroots are necessary features of federalism.
The heated and persistent disagreements over the extent of local government autonomy reflect an absence of clarity about the nature of federalism in Pakistan. While there are many arguments in favour of empowering local governments, federalism is not one of them.
The writer is a lawyer.
Courtesy Dawn, December 29th, 2023