By Barrister Roman Awan

Will we always run Pakistan without a constitution? Can we do it? Pakistan is a country where the significance of the constitution is the tiniest. The state has perpetually been in a constitutional crisis since 1947. The constitutional crisis is still lingering. Then, there are two fundamental issues. One is making the constitution, and the other is executing the constitution. Unfortunately, the constitution’s legislation and execution have been a severe constitutional governance challenges in Pakistan. The nation and state must understand that the state business shall only remain functional with implementing the constitution.

So much has been written that the constitution is the general will of a nation. It is a social, cultural and political consensus of a nation. Hence, it is the binding force of a nation, and it is more vital in a federal form of governance. A federation is an assemblage of various groups united to form a unified state to further accomplish common tasks of common interests. Therefore, a federal form of governance is flexible and representative. Moreover, the constitution remains the binding force among all federating units in a federation. Pakistan is a natural federation and represents a political consensus of various ethnic, linguistic, and geographical populations. Therefore, the significance of the constitution is supreme. However, it has not been the case in Pakistan.

The foremost issue has been the conflict between centralization and decentralization. As a federation, Pakistan should function as a federal state, not a unitary one. In the early years after independence, the bureaucracy and establishment developed a bond to run Pakistan as a centralized state despite being politically a federal state. Therefore, constitutional development could not be ensured until the constitution of 1973, which paved the way for a federal parliamentary constitution. 18th amendment stamped that Pakistan shall function as a federal state. However, despite all constitutional support, the country is being run as a unitary form of governance. 

What is the constitutional position of the census? Article one of the constitution declares Pakistan a federal republic. It defines the structure of a state. Then, against the spirit of the constitution, the organizations are not functioning according to the canons of federalism. There is apparent legislative, fiscal and administrative federalism; however, it is not being implemented for all practical purposes. The division of powers is the hallmark of a federal constitution. Schedule IV of the constitution defines the powers between three tiers of governance: the federal government, the Council of Common interests and Provincial governments. However, the provincial powers are not inscribed, and all powers left over in the schedule are residuary powers belonging to provinces.

Schedule IV of the constitution provides two lists: legislative list part I and legislative list part II. These lists specifically provide the powers between federal and CCI governments. There are 59 exclusive powers with the federal government, whereas there are 18 exclusive powers with the Council of Common interests. What is the Council of Common interests? Article 153 defines that there shall be a Council of Common Interests comprising the Prime Minister, all chief ministers and other members as the Prime Minister shall nominate from time to time. Article 154 further empowers the functions by stating it shall have a permanent secretariat and formulate and regulate policies concerning matters in part II of the Federal Legislative List. Furthermore, CCI shall exercise control and supervision over related institutions. Hence, the census is a power of CCI as it belongs to the federal legislative list part II, strictly in line with the constitution of Pakistan.

Then, how can the federal government run the affairs of the census? It is unconstitutional for a federal government to run the affairs of the census. Does it raise a fundamental question as to why the federal government is not interested in developing the institution of the Council of Common Interests? There are multiple reasons for it. The federal government is not interested in sharing the powers with CCI. Then, the federal bureaucracy is also obstructing the organization of the CCI. Article 240 of the constitution of Pakistan provides three types of services, federal, provincial and All Pakistan. All Pakistan is a common service between federation and provinces and shall remain functional in the 18 subjects of CCI. Presently, the federal civil service PAS is reserving provincial posts for them against the spirit of the federal constitution on the plea of a common service. However, common service shall remain functional in CCI. If CCI is developed, they shall have to work in the domain of CCI, which they do not want as their prime objective, along with that of a federal government, is to control provinces by reserving provincial posts, though at the cost of federalism.

Then, critics attribute that there are also interests of centralized powers, including an establishment that wants to run Pakistan as a unitary state, not a federation. Whatever the reasons are, one thing is paramount: to run Pakistan according to the canons of the constitution. How can Pakistan be made functional without implementing the constitution? When the census is a CCI subject, how can the federal government process it? CCI’s establishment, growth and development are central to the cause of federalism. CCI is connecting institutions between federation and provinces. Therefore, CCI must perform all its functions according to the spirit of the constitution.

Politically, it is also essential to dissect the importance of the census. Census is a shared power between federal and provincial governments. Then, if the two provinces are without their chief executives, how can the federal government do it independently? The exercise is against the spirit of constitutional federalism. The federal government can only perform it with the representation of provinces. Then, the administration must also work under the umbrella of CCI to ensure a representative and participatory census. Lastly, the constitutional prerogative of the CCI is to hold a census in the country. The federal government needs to be constitutionally empowered to do the exercise. It is even more significant to develop the institution of CCI to make Pakistan a functional federation. Then, Pakistan must function according to the canons of the constitution. For how long can we run Pakistan without a constitution?       

Read More: https://republicpolicy.com/the-rising-awareness-of-constitutional-governance-in-pakistan/