Story of Federalism in Pakistan

A research paper

By

Owais Mumtaz

BA LLB

University Law College

Punjab University Lahore.

Electronic copy available at: https://ssrn.com/abstract=3152176

Table of contents
1. Introduction
2. Evolutionary history of Federalism
3. Colonial era
3.1. Montague-Clamsford reforms
3.2. Government if India Act
4. Making of Federal-political thought
4.1. Lucknow Pact
4.2. 14 points of Jinnah
4.3. Khutbah Allahabad
4.4. Lahore Resolution
4.5. Objectives Resolution
5. Post-independence history
6. 1956 Constitution
7. 1962 Constitution
8. 1973 Constitution
8.1. Legislative Federalism
8.2. Fiscal Federalism
9. 18th amendment- Federalism strengthened
9.1. Concurrent list abolished
9.2. Empowerment of Senate
9.3. CCI Strengthened
9.4. NEC made effective
9.5. Changes in NFC
9.6. Emergency Provisions amended
10. Federalism the way forward
11. Bibliography

Electronic copy available at: https://ssrn.com/abstract=3152176

 Abstract: This paper discusses at length the story of Federalism in Pakistan. It focuses on how it evolved
during the colonial era with special references to the colonial legislations. Then making of federal-political
thought in the body politic of Pakistan has been discussed. The paper extensively examines the 1956 and
1962 constitutions and scheme of federalism under them. Much emphasis has been laid on the 1973
constitution and formula of federalism under it. Furthermore, 18th amendment has been completely
dissected and how it enriched the idea of participatory federalism has been examined. Lastly, the idea of
federalism as a way forward and how it can avoid the East Pakistan tragedy in future has been discussed.
1. Introduction: Federalism is derived from Latin word foedus, meaning "treaty, pact or covenant”.
Federalism is a system of government where sovereignty is shared (at equal peculiarity) between a central
government and its federating units (Adeney, 2007, p. 6). The nations with heterogeneous population and
multi-ethnic societies tend to adopt the federal form of government as it devises a better mechanism of
division of power among different self-governing entities to successfully satisfy the specific needs of a
particular society. As Dicey, an acknowledged constitutional scholar, defined federalism as ‘a political
contrivance intended to reconcile national unity and power with maintenance of state rights’. According this
formula of governance, the people of a specific country follow two sets of laws; the federal and provincial.
The federal laws tend to keep a homogeneous and inter-connected body polity while the state laws focus on
the local issues of public with authority to resolve them.
There are, today, at least 28 countries which practice federal form of government. The federal system
ranges from highly centralized federations to highly autonomous regional states. Federalism assures, in
modern system of representative democracy, that the rights of minorities are not washed away. It envisages
a devolution of power mechanism which entrusts more autonomy to its states. Due to these merits of
federalism it is gaining more acceptability in regions with divided polity and multi-cultural and multi-ethnic
societies.
2. Evolutionary history of Federalism in Pakistan: The story of federalism in Pakistan is deeply embedded
in its roots. Ranging as far as back to Vedic Age the history has witnessed diverse systems of governments
in Indian Subcontinent. Despite being under monarchial rule throughout its history subcontinent retained the
flavor of regional autonomy in its system of governance. Mughal rule, under The Great Akbar, saw the
empowerment of provincial governments and effective devolution of some necessary powers to Nazims
(governors) of provinces. Before the advent of British imperialism the Mughal system of government
proved to be very effective and beneficial for India. The story of federalism in subcontinent and especially
in Pakistan finds its roots in the imperial history of subcontinent under the Raj. British imperialism with
highly centralized power resulted in high demand of sovereignty to states and later that demand for
sovereignty turned into freedom movement.
3. Colonial Period: The British era adopted the policy of highly centralized governance with all the powers to
the viceroy and no effective powers for legislative councils. The documents important in colonial history of
subcontinent are Indian Councils Act 1861, Indian Councils Act 1892, Indian Councils Act 1909 (Morley-
Minto reforms), Government of India Act 1919(Montagu–Chelmsford Reforms) and Government of India
Act 1935. The Acts of 1861 and 1892 the act did little to improve the influence of Indians in the legislative
council. The role of council was limited to advice, and no financial discussion could take place. Morley-
Minto reforms did allow the Indians to elect their representatives and also increased their seats but still the
power was highly centralized with no regional autonomy of states.

3.1. Montagu–Chelmsford Reforms: Until 1919, before Montagu–Chelmsford Reforms, the Indian political
advice was limited to advisory functions only. The 1919 Act allowed a limited self-rule and concept of
federalism gained roots for the first time. The important reform in the federal structure were:
  Bicameral Legislature was set up in the center. The upper house, called as Council of States, had
60 members, while lower house or Central Legislative Assembly had 146 members.
 Powers were distributed between center and provinces.
1. Center had Foreign affairs, Defense, Railways, Currency, Tariffs and
Customs, Posts and Telegraphs, Patents and Copyrights, Commerce
and Shipping, Civil and Criminal Law and Procedure, Major Courts,
Quarantine and Telecommunications under its domain.
2. Provinces were vested with Education, Health, Irrigation, Law and
order, Administration, Land Revenue, Police and Jail, Justice, and
Local Government.
 Diarchy was introduced in the provinces which ultimately undermined the powers of provinces
and limited the federalism that had evolved under the Act. According to this system provincial
matters were divided into domains:
1. the “transferred subjects” (Health, Commerce and Education) were
entrusted to Indian Members responsible to Council, and
2. the “reserved subject” (Law and order, Finance, Police, Irrigation
and Forests) were placed under the direct control of the provincial
governors and their nominated councils.

There was no concurrent list so all the residue matters vested with center. In case of conflict among the
center and province over any matter that whether it falls under the domain or center the Governor General
rather than Courts was vested with power to decide the matter. The Governor General was also
empowered to interfere in provincial matters.

Though an effort was made to introduce federalism in the British India but still it was a very controlled
and highly center-dominated federalism.

3.2. Government of India Act 1935: On 24th July, 1935 the Government of India Act 1935 was passed by the
British parliament. Some of the important features of Federalism envisaged in the Act were:
 For the first-time India was proclaimed as “Federation of India” under Section 5 of the Act.
Federation of India consisted of 11 Governor Provinces, 6 Chief Commissioner Provinces and the
states willing to join.
 Abolished the diarchy and restored provincial autonomy.
 The Act provided three lists of subjects the Federal, the Provincial and the Concurrent Legislative
Lists.

Federal Legislative List: Under Section 100(1) of the Act the Federation is empowered to pass laws
related to the matters enumerated in the Federal legislative list in the 7th schedule. There were 59
items mentioned in the Federal Legislative List. These matters included: Defense, Posts and
Telegraph, Labor exchanges, Census, Immigration, Currency, Public debt of the Federation, Federal
Public Services, Federal agencies, Federal railways, Maritime shipping and navigation, Major ports,
Carriage of passengers and goods by sea or by air, Copyright, Arms; firearms; ammunition,
Explosives, Petroleum and other liquids, Corporations, Development of industries, extension of the
powers and jurisdiction of members of police force, Duties of customs, Corporation tax, Salt, State
lotteries, Naturalization, Establishment of standards of weight, Jurisdiction and powers of all courts,
Taxes on income other than agricultural income, Taxes on the capital value of the assets, Terminal
taxes on goods or passengers carried by railway or air, The rates of stamp duty in respect of bills of
exchange, Duties in respect of succession to property other than agricultural land, and Taxes on the
capital value of the assets.

Provincial Legislative List: Under Section 100(3) of the Act the Provinces are entrusted with the
following 54 matters enumerated in the Provincial Legislative List. Few important matters entrusted
upon provinces are: Public order, Police including railway and village police, Prisons, Public debt of
the Province, Provincial Public Services, Compulsory acquisition of land, Local government, Public
health and sanitation ; hospitals and dispensaries, Education, Communications, Water, Agriculture,
Forests, Regulation of mines and oilfields and mineral developments, Fisheries, Protection of wild
birds and wild animals, Gas and gasworks, Trade and commerce within the Province, Intoxicating
liquors and narcotic drugs, Unemployment, Charities and charitable institutions, Land revenue,
Capitation taxes, Taxes on professions, Taxes on animals and boats, Taxes on the sale of goods and
on advertisements, Taxes on luxuries, Rates of stamp duty, Tolls, and Dues on passengers and goods
carried on inland water- ways.

Concurrent Legislative List: Both Provinces and Federation are empowered under Section 100(2) to
legislate upon the 36 matters enumerated under Concurrent List in 7th Schedule. This list has two
parts, Part I is operated normally under Section 100 and 104 of the Act, while Part II is regulated by
Section 126(2) which empowers Federation to give directions to the provinces to execute the Laws
made under Part II of the Concurrent Legislative List.

Part I had following important matters under it: Criminal law, Criminal Procedure, Removal of
prisoners and accused, Civil Procedure, Evidence and oaths, Marriage and divorce, Wills, intestacy,
and succession, Transfer of property other than agricultural land, Trusts and Trustees, Contracts,
Arbitration, Bankruptcy and insolvency, Stamp duties, Actionable wrongs, Newspapers, books and
printing presses, Lunacy and mental deficiency, Poisons and dangerous drugs, Mechanically
propelled vehicles, Boilers, Prevention of cruelty to animals, and Factories.

Part II had following matters: Shipping and navigation on inland waterways, Welfare of labor,
Unemployment insurance, Trade unions, Electricity, the sanctioning of cinematograph films for
exhibition, and Persons subjected to preventive detention under Federal authority.

The above division of powers shows that the 1935 Act was great leap forward in the evolution of
Federalism in the subcontinent. The Britishers devised this mechanism of devolution of powers in
order to redress the growing demand of autonomy of the Indians. Some other important features of
Federalism under 1935 Act were:

 Federation to legislate for two or more provinces if they wished so under Article 103
 Establishment of Inter-Provincial Council under Section 135 to resolve disputes between
provinces or between the Federation and Provinces.
 Section 136 distinguishes between “revenue of Federation” and “revenue of Provinces” as all
the money raised by Federation and all the raised by provinces respectively.
 Section 137, 138,140 and 140A devise a way to distribute the tax revenues on stamp duties,
fares, freight, income, salt duties, excise duties, export duets and sale of goods.
 Section 163 illustrates the burrowing of Provinces upon the security of the revenue of the
Province.
 Government of India Act devised, after at great length, the federal character of the State of India. But still
the Act was not up to the expectation of the people of subcontinent as it still usurped their power to self-
rule. Manto has rightly explained the expectations of the Indian people after the adoption of 1935 Act in
his famous short story “The New Constitution”. Britishers did give autonomy to the Provinces but still the
all-powerful Governors and Governor General usurped the powers of Provinces. The federal mechanism
had more authority tilt towards the center rather than provinces. Though Federating units were given a
share in the governance yet the real power vested in the center. It was a quasi-federal Act and needed a
scheme of federalism with clearly demarcated powers and preservation of unity of subcontinent along
with the autonomy of federating units.

4. Making of Federal-Political Thought: The founding fathers of the country and All India Muslim League
that steered the formation of Pakistan always campaigned the demand for the provincial autonomy during
the pre-independence era. Historically, these demands made a great public sensation of autonomy to the
provinces, which even after the formation of Pakistan continued to haunt the proponents of unitary form of
government. Though the demand for self-rule and provincial autonomy echoed throughout the British rule
in Subcontinent. But the concern for present discussion is the role of Muslim League and its leaders in
making of Federal-Political thought among the body politic of Pakistan. The important events and promises
for provincial autonomy include the 1916 Lucknow Pact, 14 points of Quaid-e-Azam in 1929, Khutba
Allahabad of Allama Iqbal, 1940 Resolution of Pakistan and Objectives Resolution. Jinnah and Muslim
League always campaigned the cause of provincial autonomy and dared to criticize vehemently the
powerful center.

4.1. Lucknow Pact: in 1916 the Congress and Muslim League signed a “Hindu-Muslim unity Accord” which
earned for Jinnah the title “Ambassador of Hindu-Muslim unity”. The pact focused mostly on the unity of
Indians and collective pressure on Britishers to ensure the sovereignty of India and its people. But a rather
uncelebrated and important proposal in this pact was the demand for provincial autonomy. The pact states,
“Provincial autonomy will be given to the Provinces with maximum powers vested in the Provincial
Councils”.

4.2. 14 Points of Jinnah: Jinnah in 1929 as a response to the Nehru report put forth his famous 14 points as a
constitutional reform plan to safeguard the rights of Muslims in future constitution of India. The three
important points in these 14 points, which highlighted the worth of federalism for future constitution are:
 The form of the future constitution should be federal, with the residuary powers vested in the
provinces;
 A uniform measure of autonomy shall be guaranteed to all provinces;
 No change shall be made in the constitution by the Central Legislature except with the
concurrence of the State's contribution of the Indian Federation.
A bare perusal of these above-mentioned points shows that the Father of Nation had always envisaged the
federal form of government with more and uniform provincial autonomy.
In November 1945 Quaid-e-Azam Muhammad Ali Jinnah once again iterated the need of Federalism in
the future Muslim state (Pakistan) in following words:
“The theory of Pakistan guarantees that federal units of the National Government would
have all the autonomy that you will find in the constitution of the United States of America,
Canada and Australia. But certain vital powers will remain vested in the Central Government
such as monetary system, national defense and federal responsibilities”
4.3. Khutbah Allahabad: In this famous address to Muslim League workers at 25th annual session of the All-
India Muslim League, at Allahabad, Allama Iqbal envisaged the idea of "a Muslim India within India".
While addressing the workers, he said: “Self-government within the British Empire, or without the British
Empire, the formation of a consolidated North-West Indian Muslim State appears to me to be the final
destiny of the Muslims, at least of North-West India”. Iqbal’s demand of self-government within or without
British Empire echoes the sentiments of Muslims of that era to have autonomous self-governing state
functionaries to safeguard their rights. Resultantly, after 17 years Pakistan appeared as a self-governing state
for Muslims.

4.4. 1940 Resolution of Pakistan: This famous resolution was passed by All-India Muslim League on the
occasion of its three-day general session in Lahore on 22–24 March 1940. The resolution on one hand
rejected the idea of united India and demanded a separate state for Muslims, but on the other hand it also
conceived the idea of independent and autonomous eastern and western states. The resolution stated as:
“That geographically contiguous units are demarcated into regions which should be
constituted, with such territorial readjustments as may be necessary that the areas in which
the Muslims are numerically in a majority as in the North Western and Eastern Zones of
(British) India should be grouped to constitute ‘independent states’ in which the constituent
units should be autonomous and sovereign.”
The demand for the autonomous and sovereign constituent units echoes the very idea of strong federalism
to be followed in the future Muslim state.
4.5. Objectives Resolution: Objectives Resolution is hailed as the Magna Carta of Pakistan. This resolution
proclaimed few principles for the future constitution of Pakistan. Since then it has been heralded as the
foundational stone in the constitutional history of Pakistan. This resolution also envisaged the federal form
of government in Pakistan with autonomous constituent units. It stated as:
“Pakistan shall be a federation and its constituent units will be autonomous.”
Having all these events and documents in mind one can easily infer that the founding fathers of this nation
always wished and visualized the federal form of government in Pakistan with autonomous provinces.
Similarly, the way the Muslim majority provinces were given the right to retain with un-divided India or
join to form a separate state suggests that it was the federating units which decided to form the federation
of Pakistan same like United States. Princely states of that time were also given the right to join either
India or Pakistan or remain independent. The forefathers of the country did ideate the federal state and
later the scheme of formation of Pakistan also echoed the same. So, till now the study of pre-
independence history of Pakistan suggests that it was destined to become a federal state with autonomous
provincial governments.

5. Post-Independence History: The first document after the independence was Objective Resolution and as
discussed earlier it fanaticized the federal form of government with autonomy to the provinces. But, as time
passed the constitutional crises led to the usurpation of power by the center and several provincial
governments were toppled.
 Dismissal of Dr. Khan Shaib Ministry Govt. of NWFP on 22 August, 1947 under section 51(5) of
interim constitution Govt. of India Act 1935.
  Dismissal of M.A. Khuhro Ministry Govt. of Sindh on April 20, 1948 (under section 51(5)) of
interim constitution Govt. of India Act 1935.
 Dismissal of Mr. Mamdoth Govt. of Punjab on Jan 25, 1949 (under section 92-A) of interim
constitution and Governor rule proclaimed.
 Dismissal of Mr. Fazal-ul-Haq in 1954 in East Pakistan (under section 92-A)
During the first decade of infant country the constitutional aggravated as successive Provincial and
Constitutional Assemblies were dismissed. In 1953, Prime Minister Muhammad Ali Bogra proposed a
formula. This Bogra formula did try to create a federal state and resolve crises by purposing that the
Federal Legislature would comprise of two houses – the House of Unit and the House of People. House of
unit as an upper house had 50 seats with equal representation of all 5 provinces. And in lower house
representation was based on population with 300 seats. This concept neutralized the between East and
West Pakistan, but unfortunately the assembly was dissolved before it could have been implemented.
6. 1956 constitution: Passed on 23rd March, 1956, this was the first ever constitution of the country adopted 9
years after its independence. Article 1 of this constitution declared Pakistan as federal republic. Main
features of this constitution related to federalism are:
 One unit formula was introduced which divided Pakistan into two Provinces; East and
West Pakistan.
 Unicameral Legislature was introduced under Article 43, with 300 members equally
divided between East and West Pakistan. President was also part of Parliament.
 Provincial Assembly consisted of Governor and one House with 300 seats each (Article
76 and 77).
 Federal Consolidated Fund is created under Article 61 and Article 94 defines Provincial
Consolidated Fund.
 Article 118 establishes National Finance Commission to make recommendations to the
President regarding distribution of financial resources between Federation and
Provinces.
 Article 199 establishes National Economic Council to overview the economic conditions
of the country.
 Article 119 limited the authority of provinces to make laws on inter-provincial trade.
 In Article 129 mechanism for dispute resolution is envisaged between Provinces or
Provinces and Federation. It states that when dispute is of nature which is not under the
jurisdiction of the Supreme Court then the Chief Justice can appoint a tribunal to
dissolve it.
 Article 106 designates three Legislative lists: the Federal List, the Concurrent List and
the Provincial List with residuary powers. The Federal List in 5th schedule had 30 items,
the Concurrent List had 19 items and Provincial List had 93 items.
The Federal and Concurrent Lists incorporated items of significance importance, while some important
matters along with relatively inconsequential matters were given to provinces. The Federation controlled
matters such as Defense, Citizenship, Censor, Ports, Minerals and Oil, Currency and Federal Public
Service Commission under Federal List and matters such as Criminal and Civil Law, Scientific research,
Printing Press, Price Control, and Economic Social Planning under Concurrent List. All other matters
were vested in provinces which included Law and Order, Railways, Education, Health, Electricity,
Factories, Industries, Zakat and all other such matters.
 Apparently the 1956 constitution was a great leap forward towards a true Federal State with maximum
autonomy to the provinces. But, this autonomy was undermined by the provisions of constitution itself as;

 One Unit was introduced which usurped the identity of smaller provinces like NWFP,
Sindh and Balochistan (it was part of NWFP till 1970) in West Pakistan.
 Article 92 of the constitution declared that no bill or amendment making provision for any
matter specified in a money bill, or that would involve expenditure from the revenues of
the Province, shall be introduced or moved in a Provincial Assembly except on the
recommendations of the Governor. This is a clear infringement in the powers of Provincial
Assembly.
 Though the Electricity was declared as Provincial subject but we find discrepancy in it as
Article 113 of the Constitution provided that no Act of Provincial Legislature shall impose
tax on the electricity consumed by the Provincial Legislature.
 Emergency powers given to the President and Parliament also overruled the sovereignty of
Provinces as they had no say in case of declaration of Emergency.
Although this constitution tried to cater all the demographic, ethnic, fiscal and linguistic challenges yet
the power structure tilted towards the center.
7. 1962 Constitution: Unfortunately, the 1956 Constitution could not flourish as the country was put under
Martial Law by the Ayub Khan in 1958 and constitution was discarded. The Martial Law was validated by
the apex court and new Legal Order replaced the old Constitution. Ayub Khan introduced a new
Constitution which tried to hide the dictatorship under the guise of Presidential System introduced in the
new constitution.
This Constitution, same as 1956 Constitution, was based on One Unit formula with complete parity
between both regions. Unicameral Legislature was retained along with the all-powerful President to
oversight the Parliament and Provincial Assemblies. National Finance Commission (Art. 144) and
National Economic Commission (Art. 145) were retained with no specific provisions for Provincial
representation. Unlike 1956 Constitution there was only on Legislative List in 3rd schedule and Central
Legislature was empowered to legislate on matters enumerated in that list under Article 131. All the
residuary powers were vested in Provincial Legislatures under Article 132. The list in 3rd schedule
contained 49 items, but if the sub items were also counted the number extended to 93 items.
The Provincial independence was curtailed under Article 74 which placed restrictions on Provincial
Assembly. It stated that: “in case of conflict between the Governor and Assembly of the Province, if the
conflict has been decided by the National Assembly in favor of the Governor, he or she can, with the
consent of President, dissolve the Assembly”. This was a clear embargo on the powers of an elected
Provincial Assembly by an unelected Governor. The Governors were nominated by the will of President
and enjoyed enormous powers. As the President was all in all in central government, he tried to do same
in case of Provinces by creating impotent Provincial Legislatures as that of Center.
The essence of federalism was crushed by the President cum dictator and ultimately led to the ouster of
Ayub Khan by Yahya Khan. Country again was placed under Martial Law, and this authoritarian rule led
to the East Pakistan tragedy. There are multiple analyses on the downfall of Dhaka but regarding the
federalism and its utility, it was lack of federal design of the constitutions which carved out one of the
solid reason of the East Pakistan debacle.
8. 1973 Constitution: The fall of East Pakistan was fresh in minds of the framers of this Constitution. So, the
1973 Constitution was a result of compromises as wounds of East Pakistan were still bleeding and a wave of
independence in Balochistan was just recently crushed. The main characteristics of this Constitution are:
 Article 1 declared Pakistan a Federal Republic.
 Bicameral Legislature was introduced under Art. 50 with National Assembly (House of
Representatives) and Senate (House of Federation).
 Senate contained equal representation of Provinces along with representatives from
FATA and Federal Capital (Art. 59).
 The provisions to dissolve Provincial or Central Assemblies on the whims and wishes of
President or Governor were removed.
 Federalism in this constitution is discussed in two Parts, Part V deals with legislative and
executive federalism while Part VI deals with Fiscal Federalism.
8.1. Legislative Federalism: Part V of this constitution discusses the relation between Federation and
Provinces. This Part ranges from Article 141-159. It is further dissected into 3 chapters.
Chapter 1 - Distribution of Legislative Powers: This chapter distributes the legislative powers between
Federation and Provinces under Article 142. This Article envisages two Legislative Lists in Federal
Schedule as Federal Legislative List and Concurrent Legislative List. Federation can legislate exclusively
on matters in Federal List, while both Provinces and Federation can legislate on matters in the Concurrent
List with Federation to override Province in case of inconsistency. All residuary powers are rested with
Provinces under this chapter. Parliament can legislate for two or more Provinces on matters not
enumerated in either of lists upon the wish of Provinces.
Federal Legislative List: This List consisted of two Parts, Part I contained 59 items and Part II contained
8 items. Matters in Part I are under the exclusive domain of Federal Government while those under Part II
are regulated Under Article 153, which will be discussed later. Important matters in Part I are:
The defense of the Federation, External affairs, Nationality, Migration, Posts
and telegraphs, Currency, Foreign exchange, Public debt of the Federation,
Federal Public Services, Administrative Courts and Tribunals for Federal
subjects, Education as respects Pakistani students in foreign countries and
foreign students in Pakistan, Nuclear energy, including, Maritime shipping and
navigation, Aircraft and air navigation, Carriage of passengers and goods by
sea or by air, Copyright, Opium, Import and export across customs frontiers as
deemed by the Federal Government, inter-provincial trade and commerce, trade
and commerce with foreign countries, State Bank of Pakistan, The law of
insurance, Stock exchanges, Corporations, International treaties, conventions
and agreements and International arbitration, National highways and strategic
roads, Federal surveys, Fishing and fisheries beyond territorial waters,
Establishment of standards of weights and measures, Duties of customs, Duties
of exercise, Taxes on income other than agricultural income, on corporations,
on the sales and purchases of goods, on the capital value of the assets, on
mineral oil, natural gas, and terminal taxes on goods or passengers carried by
railway, sea or air; taxes on their fares and freights.
While the Part II following 8 items:
Railways, Mineral oil and natural gas, Development of industries, Council of
Common Interests, Fees in respect of any of the matters in this part, Offences
 against laws with respect to any of the matters in this Part, Inquiries and
statistics for the purposes of any of the matters in this Part, and matters
incidental or ancillary to any matter enumerated in this Part.
Concurrent List: Concurrent List contained 47 matters on which both the Federations and Provinces
were empowered to legislate. These 47 matters were:
Criminal law, Criminal procedure, Civil procedure, Evidence and oath,
Marriage and divorce, Wills, intestacy and succession, Bankruptcy and
insolvency, Arbitration, Contracts, Trust and trustees, transfer of property,
registration of deeds and documents, Actionable wrongs, Removal of prisoners
and accused persons from one Province to another Province, Preventive
detention for reasons connected with the maintenance of public order, Arms,
fire-arms and ammunition, Explosives, Drugs and medicines, Poisons and
dangerous drugs, Environmental pollution, Population planning and social
welfare, Welfare of labor, Trade unions, Boilers, Unemployment insurance,
Mechanically propelled vehicles, Electricity, printing presses, Curriculum,
syllabus, planning, and standards of education, Islamic education, censorship,
Tourism, Legal, medical and other professions, Zakat, and Auqaf.
The division of Legislative powers in 1973 Constitution didn’t embark the idea of Federalism which it
could have after going through the bitter experience of Center dominancy in past 26 years.
Chapter 2 – Administrative relations between Federation and Provinces: The Articles from 145-149
address the nature of administrative nature between Center and Provinces. These articles deal with the
power of President to direct the Governor to perform certain functions on his behalf in areas included in
federation, right of Federation to confer powers on Provinces, and to directions given by Federation to
Provinces in certain cases.
Article 151 in this chapter extensively deals with the regulation of inter-provincial trade and is commonly
called as the ‘Commerce Clause’ of Pakistan. It restrains the Provinces to exercise any legislative or
executive action which prohibits or restricts the import or export of goods from one Province to another.
Moreover, it also debars Provinces to impose unreasonable tax on the goods manufactured in one
Province as against similar goods produced outside that Province.
Chapter 3 – Article 152-159: These articles deal Council of Common Interest, Water supply, National
Economic Council, Electricity, Natural Gas and Broadcasting.
 Council of Common Interest: Under Article 153 and 154 of the constitution Council of
Common Interests is instituted by the President. It consisted of Prime Minister and 4 Chief
Ministers. The Council had the power to take care of disputes between Provinces and between
Center and Province. It also monitored the 8 matters enumerated in the Federal Legislative List
Part II. It was also empowered to resolve dispute over distribution of water under Art. 155 and
on the issue of Electricity (item 34 of the Concurrent List) under Article 157. In case of
dissatisfaction of any Province or Federation over the decision of CCI the matter can be
transferred to joint siting of Parliament and in such case decision of Parliament will be final.
The CCI was powerful in theory but weak in practice. The meetings of CCI were few and far
between, making it an ineffective body.
 National Economic Council: Under Article 156 President constitutes the NEC. It consisted of
Prime Minister any other member as the President deemed fit. Its function is to overview the
 overall Economic situation of the country and advice the Federal and Provincial Governments
to seek balanced development and regional equity.
 Priority of Natural Gas: Article 158 states that the Province in which well-head of gas is
found will have priority over others.
 Broadcasting: Article 159 stipulates that the Federal Government shall not unreasonably take
control over broadcasting from a Provincial Government.
8.2. Fiscal Federalism: Part VI of the Constitution envisages fiscal federalism as it deals with the distribution
of revenues between the Federation and the Provinces. The main subjects of this chapter are National
Finance Commission, Natural gas and hydroelectric power, Bills affecting taxation, Borrowing, and
Ownership of ownerless property.
National Finance Commission: Article 160 commands President to constitute NFC consisting of
Ministers of Finance from Federation and Provinces and any other person appointed by President. The
purpose of the Commission is to make recommendations to the President of following grounds:
 The distribution between the Federation and the Provinces of the net proceeds of the following
taxes;

a) taxes on income, including corporation tax but not including

taxes on income consisting of remuneration paid out of the
Federal Consolidated Fund;
b) Taxes on the sales and purchases of goods imported, exported,
produced, manufactured or consumed;
c) Export duties on cotton, and such other export duties as may be
specified by the President;
d) Such duties of excise as may be specified by the President;
e) Such other taxes as may be specified by the President.

 The making of grants-in-aid by the Federal Government to the Provincial Governments;

 The exercise by the Federal Government and the Provincial Governments of the borrowing
powers conferred by the Constitution; and
 Any other matter relating to finance referred to the Commission by the President.
After receiving such recommendations, the President by Order shall promulgate the suggestions so made.
The recommendation of NFC, together with an explanatory memorandum, shall be laid before both
Houses of Parliament and Provincial Assemblies.
From the Niemeyer Award issued under the 1935 India Act and the Raisman formula of 1947, several
Awards have been issued to streamline the share of the divisible pool of tax receipts, essentially based on
population. Awards issued under military governments, in 1961 and 1964 under Ayub, in 1979 and 1985
under Zia, and in 2000 and 2006 under Musharraf failed to develop a consensus between provinces, and
were thus deadlocked. (NFC Award, nd: 3) But, the 1974 Award under Z. A. Bhutto and the 1991 and
1996 Awards under Nawaz Sharif were based on consensus. The latter increased the share of provinces
from 28% to 45% of the federal tax revenue. Among provinces, Punjab got 57.88%, Sindh 23.28%,
NWFP 13.54% and Balochistan 5.30%. (Ahmed et al, 2007: 12,19, 8)
In 2006, after NFC failed to reach a consensus, President Musharraf declared the provincial share at 45%,
with 1% increase per annum up to 50% in 5 years. A major breakthrough came in 2009, when the NFC
 Award increased the provincial share of the divisible pool from 47% to 56% for 2010-11 and to 57.5% for
the following four years. The new criteria for the Award included: population 82%, poverty 10.30%,
revenue generation 5% and inverse population density 2.7%. The Award changed the ratio of distribution
of resources to provinces: Punjab 51.74%, Sindh 24.55%, NWFP 14.62% and Balochistan 9.09%. (NFC
Award, nd: 4) By far, this has been the most progressive step in the direction of fiscal federalism. It
decreased the share of Punjab, almost doubled the share of Balochistan and expanded the criteria for the
NFC Award.
Natural Gas and Hydroelectric power: Article 161 specifies federal duty of excise levied on Natural
Gas and net profits earned by the Federal Government from any hydroelectric station shall be paid to
Province in which they are situated.
Bills affecting taxation in which Provinces are interested: Under Art. 162 such bill or amendment shall
not be moved in Parliament except with the previous sanction of President.
Provincial taxes on professions: Provincial Assemblies are empowered under Art. 163 to impose taxes
on professions, trade or employment and it shall not be regarded as income tax.
Burrowing of Provinces: Article 167 provides that the Provinces can extend their executive authority to
burrow upon the security of the Provincial Consolidated as prescribed by the Act of Provincial Assembly.
The Federal Government can also make loans and give guarantees in respect of the loans raised by the
provinces.
Ownership of ownerless property: Any such property if in the Province shall be the property of
Province and if at any other place then it shall vest in Federal Government. Article 172(2) states that, all
lands, minerals and other things of value within the continental shelf or underlying the ocean within the
territorial waters of Pakistan shall vest in the Federal Government.
The Constitution of 1973 extensively elaborated the concept of Federalism in Pakistan and tried to create
a Participatory form of Federalism but it fell short of its target when the Martial Law was imposed in the
country on 5th July, 1977. General Zia who later became President Zia stripped off the Federal character
of the Constitution by passing the 8th amendment which changed the Parliamentary form of government
into Quasi- Presidential form. President and Governors were given the power to dissolve National and
Provincial Assemblies under Art. 58 (2)(b) and 112(2)(B) respectively. The power returned to the people
after the Zia’s demise but the 8th amendment continued to haunt the democratic setup in the county. 13th
amendment tried to restore the Constitution in its original form but again the Martial Law was imposed in
Country in October, 1999. The 17th amendment introduced by President Musharraf again changed the
Constitution into a quasi-presidential form with President the sole power holder.
As the great Chilean poet Pablo Nerunda said: “You can cut all flowers, but you can’t keep spring from
coming”. So is the case with dictators, they can usurp the power of people but they can’t keep the spring
from coming. In 2006, the two largest parties of Pakistan, PMLN and PPP, signed a Charter of
Democracy to restore the Constitution of 1973 in its true spirit.
9. 18th amendment – Federalism strengthened: 18th amendment was the outcome of the frustration of the
politicians under dictatorship and struggle of the people for regional autonomy. This amendment amended
almost 101 Articles of the Constitution. It was the return of spring which Pablo Nerunda has talked of in his
couplet. Major impacts of this amendment are discussed below.
9.1. Concurrent Legislative List abolished: The concurrent list was abolished and out of 47 items of the
concurrent list, one item Boiler (no.29) was shifted to Federal Legislative List I and two items, Electricity
and Legal, medical and other professions have been moved to the Federal Legislative List-II. Following
items form Federal Legislative Part-I were transferred to Part-II:
 Major ports
 National planning and national economic coordination including planning and coordination
of scientific and technological research
 Census
 Extension of the powers and jurisdiction of members of a police force belonging to any
Province to any area in another Province.
While following matters were newly added to the Federal Legislative Part-II:

 Standards in institutions for higher education and research, scientific and technical
institutions
 Inter-provincial matters and co-ordination
 Supervision and management of public debt
 All regulatory authorities established under a Federal law.
Five items were deleted from the Federal List-I and given to provinces. These are:

 State lotteries
 Duties regarding succession of property
 Estate duty in respect of property
 Capital gains
 General sales tax on services.
A new provision was added to Article 142, which made Criminal law, Criminal procedure and Evidence a
joint subject of Provincial and Federal legislatures. The Article 105(1) was amended to force Governor to
ask reconsider on advice CM in 15 days and then after such reconsideration to accept it in 10 days.
Similarly, the Governor was debarred from withholding assent after reconsideration under Art. 116 by
forcing him to give assent in 10 days or it would be deemed to have been given. Furthermore, the Art.
140(a) was added to allow Provinces to establish local government system.
After 18th amendment all the major items in the concurrent list were transferred to the Provinces this
made them more autonomous and in a better position to deal with the local issues. Almost 17 ministries
were transferred from Federation to Provinces. The important subjects transferred to provinces include:
Civil laws, Curriculum and policies for education, Environmental control, Labor laws, Population
planning and social welfare, Zakat and Auqaf, Drugs and medicine, Arms and ammunitions. This
devolution of power is unique in country’s history and has moved the federal principle of country from a
strong federalism to participatory federalism.
Some other amendments related to the Federalism in 18th amendment are:
9.2. Empowerment of Senate: Senate is empowered by the 18th amendment by equating it with the National
Assembly in terms of exercise of powers of functions. Following amendments were made to empower
senate:
 Recommendation time for Money Bill is increased from 7-14 days.
  Ordinance can’t be passed under Art. 89 when Senate is in session. Earlier it was passed only if
NA wasn’t in session.
 Cabinet is made responsible to both Senate and NA under Art. 91(4).
 Senate members are included in Parliamentary committees to appoint Judges and Election
Commission members.
 Proclamation of emergency is to be placed before both houses. Earlier it was placed before joint
session in which the mandate of Senate was undermined by the majority of NA.
 Reports of CCI, NEC, Principles of Policy and Auditor General are to be placed before Senate.

9.3. CCI strengthened: Council of Common Interest was an ineffective body before 18th amendment. It hardly
met much and discussed any issue. But after the 18th amendment it has been made more effective by;
 Subject matters under Federal List-II have been increased from 8 to 18,
 adding three more members on the will of Prime Minister,
 fixing a time of at least 90 days to meet once,
 submitting annual report to both houses of Parliament,
 under Art. 157 in case of dispute between Federal Govt. and Provincial Govt. CCI would
resolve it.

9.4. NEC made effective: 18th amend following commendable changes to the Art. 156 to make NEC more
effective:
 Specified the members of NEC to be PM as chairman, 4 CMs with member from each
province and 4 members to be nominated by the PM.
 It’s now compulsory for NEC to meet twice a year.
 NEC is required to submit annual report to each House of Parliament.

9.5. Changes in NFC: Two new provisions have been added to Art. 160 to ensure Provincial autonomy in the
distribution of revenue by the NFC. These provisions are:
 3A: this clause states that the share of provinces can’t be decreased and it shall not be less
than the share in previous award made by the NFC.
 3B: this clause directs the Finance Ministers of Provinces and Federation to submit the
reports biannually before both Houses of Parliament and Provincial Assemblies.

9.6. Amendment in Emergency Provisions: Emergency Provisions in the Constitution under Part X have been
in such a way to safeguard the autonomy of Provinces in case of Emergency. These amendments are:
 A proviso is added to Article 232 that in case of Proclamation of Emergency due to
internal disturbances in a Province, a resolution demanding Emergency from the Provincial
Assembly of that Province shall be required. And, if in any case the President acts on his
own that such Proclamation shall be placed before both Houses of Parliament separately
for approval within 10 days.
 Article 233 is amended and in case of suspension of specific Fundamental Rights as
mentioned in the Article, then such order shall be placed before both Houses of Parliament
 separately rather than in joint sitting as it was previously envisaged. This was done to
ensure the worth House of Federation (Senate) as it would have been undermined in case of
Joint Sitting.
 In case of Provincial Emergency under Article 234 the President shall act only on the
report of Governor and nothing else and he was allowed to react if he received any material
sufficient for his satisfaction to proclaim Emergency form another source. The word joint
sitting is also replaced with Each House separately, allowing more worth to the Senate in
case of Emergency in a Province.
Other significant amendments: Many other significant amendments were made which favored
the federalist cause and strengthened the federalism in the country. These amendments are:

 Mediation committee removed: Mediation which was envisaged under Art. 71 has been
abolished and now the bill is placed before joint sitting of the Parliament in case of conflict
on amendments between both Houses.
 Article 161 is amended and now the federal duty of excise on oil levied at well-head is to
be paid to the Province in which the well-head is situated.
 Article 167 is also amended and new clause has been added and it allows Provinces to
raise domestic or international loans or give guarantees on the security of Provincial
Consolidated Fund within the limits prescribed by the National Economic Council.
 Article 172 has been amended in such a way that the all the lands, minerals and other
valuable things within the territorial waters devolved to Provinces as their property.

10. Federalism - the way forward: 18th amendment has contributed a lot to the development of participatory
Federalism in the country, still the way is very long but surely, not that far. Pakistan has moved from a
strong and center dominated Federal state to a state of participatory Federalism. Provinces should be trusted
and given enough power to flex their muscle to cater the local issues. As James Madison, the Father of
American Constitution, aptly said in his famous essays in “the Federalist”:

“The accumulation of all powers, legislative, executive, and

judiciary, in the same hands, whether hereditary, self-appointed or
elective, may justly be pronounced the very definition of tyranny.”

This country has already lost its half part and now the largest Province is facing the wave of
independence. South Punjab also wants a separate share from Lahore. FATA reforms have become the
need of hour. In case of such situation the participatory Federalism can solve the issue and save the future
of country as an integrated unit. The Provinces have distinct identity since ages, they have fought against
invaders and know the worth of autonomy and sovereignty. The only forward for Pakistan is to ensure
more devolution of power to Provinces making them capable enough to stand and walk on their feet
without looking at center.

I would like end this paper with the story which Raza Rabbani, the chief architect of 18th amendment, has
recalled in his book “A Biography of Pakistani Federalism Unity in Diversity”. He says that once he was
having a walk in a park. He saw a son fighting with father, because he wanted to drive the bicycle alone.
But the father, out of fear that he might not be able to do so, was not willing to let him go. This led the
young boy to fight with his father and ultimately father capitulated and allowed him to go. As the son
started to drive it alone, he stumbled after sometime and unbalanced himself. He was about to fall, when
the father ran to rescue him. Rabbani says that, I envisage such form of participatory federalism on our
 homeland where provinces are entrusted to work independently and in any case if they are unable to
function the center same as the father comes to rescue them.

11. Bibliography

 Raza Rabbani (2011) A Biography of Pakistani Federalism Unity in Diversity.

 Asma-ul-husna Faiz (2015) Making Federation Work. Federalism in Pakistan After the 18th
Amendment.
 Anwar Shah (2012) Making Federalism Work - The 18th Constitutional Amendment
 Zubair Faisal Abbasi (2010) Federalism, Provincial Autonomy, and Conflicts.
 Iram Khalid (2013) Politics of Federalism in Pakistan: Problems and Prospects.
 PILDAT, Historical Evolution of federalism in Pakistan.
 Dr. Muhammad Waseem (2010) Federalism in Pakistan.
 Syed Mussawar Hussain Bukhari, PhD and Muhammad Faisal (2013) A Comparative Study
of Federalism in Pakistan after 18th Amendment and USA
 Constitution (Eighteenth Amendment) Act, 2010 (10 of 2010).
 Constitution of Islamic Republic of Pakistan 1973.
 Full text of "Government of India Act 1935"
https://archive.org/stream/GovernmentOfIndiaAct1935/ukpga_19350002_en_djvu.txt
 Fifth Schedule of 1956 Constitution, http://pakistanspace.tripod.com/archives/56_s5.htm
 4thSchedule Legislative Lists of 1973 Constitution,
https://pakistanconstitutionlaw.com/4thschedule-legislative-lists/
 Madison and Federalism, http://oll.libertyfund.org/pages/madison-and-federalism