PRIME Minister Yousuf Raza Gilani appropriately declared July 1, 2011 as Provincial Autonomy Day. But it is also a red-letter day in the history of the federal movement, because it marked a historically unprecedented act of a federal centre transferring important powers to the federating units, affecting as many as 17 federal ministries.

This was done under a constitutional amendment adopted on the basis of an all-party consensus, which itself is no small achievement.

The constitution of Pakistan contained in its Fourth Schedule the Federal Legislative List split into Part I containing 59 entries, and Part II of eight entries; broadly, railways, mineral oil and natural gas industries whose development is declared by federal law “to be expedient in the public interest”, certain institutions and corporations and the Council of Common Interests (CCI).

The Concurrent Legislative List of 47 entries defined topics on which, both, the federation and the provinces could legislate listing criminal law and procedure, civil procedure, marriage and divorce, contracts, trusts, environmental pollution and a host of matters of vital concern. The rest, the residuary power, vested in the provinces.

The Constitution (Eighteenth Amendment) Act, 2010 omitted the entire Concurrent List, but with some provisos. Both parliament and the provincial assemblies will have power to legislate on criminal law, criminal procedure and evidence, the federal law prevailing in the event of a conflict.

However, the federation will have exclusive power in respect of “electricity, major ports, that is to say, the declaration and delimitation of such ports, and the constitution and powers of port authorities therein. All regulatory authorities established under a federal law. National planning and national economic coordination including planning and coordination of scientific and technological research. Supervision and management of public debt, census. …Legal, medical and other professions.

Standards in institutions for higher education and research, scientific and technical institutions. Inter-provincial matters and coordination”.

This devolution of powers to the provinces was to be completed by June 30, 2011. A nine-member parliamentary implementation commission, set up by the federal government so resolved on Oct 5, 2010. Since executive power is co-extensive with legislative power, 17 federal ministries were to be devolved to the provinces leading to a reduction in the size of the federal cabinet.

Article 153 of the constitution established the CCI headed by the prime minister, comprising the chief ministers of the provinces and an equal number of members of the federal government nominated by the prime minister. The Council was to be “responsible to parliament”. The 18th Amendment adds teeth to Article 153. It is now empowered to “formulate and regulate policies in relation to Part II of the Federal Legislative List and shall exercise supervision and control over related institutions”.

The provinces are given a voice not only in the formulation but also in the regulation of policies in relation to railways, industries developed by the federation and very many public corporations and institutions owned by the federation or a corporation set up by it.

The constitution of India presents a striking contrast. Residuary powers vest in the centre. Article 263 provides for the establishment of an Inter-State Council as an advisory body and then only by an order made by the president. Forty years after the constitution came into force the president set up an Inter-State Council on May 25, 1990. It has made no impact. The centre wields enormous power.

In 1978, R. Venkataraman, who later became president, complained: “I believe that the states have been deprived of their legitimate share of the revenues of the country even under the constitution. There have been occasions where, by a distortion of some of the sanctions, the revenues which are legitimately due to the states have been appropriated by the centre.”

As Prof Thomas R. Dye wrote in his work American Federalism: “Federalism is not merely a decentralised national government, and it is certainly not an effort to achieve cooperation among national, state and local governments in carrying out national policy. Competitive federalism requires that state and local governments have significant and independent responsibilities for the welfare of people living in their jurisdictions. These governments cannot be truly competitive if the federal government determines national priorities and assigns responsibility to state and local governments for policy implementation. Nor can state and local governments be truly competitive if the costs of their decisions can be externalised — shifted through federal grants-in-aid to the national government and to taxpayers throughout the nation.”

This implies a culture of federalism in which the federal centre accepts the federating units as partners in the national enterprise. They must have a voice in the formulation of policies in the social and economic field and they must be assigned finances enough to carry out their own policies. Units dependent on central grants cannot assert their rights.

A federal constitution can work properly only in a federal political set-up. This writer is not competent to opine on the party structure in Pakistan. In India, the political parties have a highly centralised apparatus. Party tickets to candidates for election depend on the wishes of the leaders at the top. State legislature parties invariably leave it to ‘the high command’ to select the leader. A chief minister who owes his job to the central leadership can hardly be too assertive about his state’s rights vis-à-vis the centre.

The writer is an author and a lawyer.