DAWN - Opinion; 22 March, 1999
Restructuring the institutions
By Dr Mubashir Hasan
THERE is general consensus in the country that the existing system of governance has fallen to pieces. The institutions of the state have to be restructured with the objective of empowering the people and relieving the armed forces of the impossible responsibility of maintaining internal peace. Political, social and economic power needs to be decentralized and devolved from officers to elected offices and institutions on the following lines:
1. Pakistan should be a decentralized state. The various levels of social existence - village, mohalla, union council, town, tehsil, city, district, metropolitan city, division and province - should, as far as possible, manage and regulate their political, social, economic and cultural life. What they can decide and implement at the smaller population level should not be referred to decision and implementation to a higher level.
2. The decentralization of the Pakistani state must be accompanied by the transfer of political, social, economic and cultural power from the apparatus of the state, as it is empowered today, to elected offices and institutions to manage and regulate public affairs. To ensure just, equitable and proper performance of such elected persons and bodies, new institutions should be created such as village and town meetings of the population as a whole and provisions made in the laws and the constitution for the recall of elected persons, of ordering fresh elections of the elected bodies at the will of the masses and of holding referendums at the level of large cities, districts and provinces.
Four levels of governance are proposed, namely, federal, provincial, district and village in rural areas / neighbourhood in urban areas. For the rural areas, a district may have a sub-district level. The city should have the status of a district. Large cities of Karachi and Lahore may also have sub-city tiers of administration.
The federation should exercise jurisdiction over four major subjects - defence, foreign affairs, communications and currency - but there are other entries in the Federal Legislative List which should come under federal jurisdiction, such as, nationality and citizenship, immigration and emigration, service commissions for federal services, state bank, import and export across custom frontiers, weights and measures, fishing beyond territorial waters, census, elections, nuclear energy, education abroad, insurance, corporations, salaries of president and elected office holders, meteorology.
The Concurrent List should not be entirely abolished. There are subjects over which both the federation and the provinces need to have jurisdiction such as arms and ammunition, drugs, poisons, environmental pollution, inland shipping and navigation, ancient monuments, distribution of river waters, electronic communications, prevention of infectious diseases among humans, animals, and plants. Further, the provinces should not be stopped from levying direct taxes. If a province, a district or a city wants to tax rich persons and corporations over and above the taxes imposed by the federation, it should be free to do so.
The provinces should have all the income they can possibly generate within their territories. The federation should be left with resources to meet its reduced responsibilities following the devolution and decentralization of federal authority. Income tax, corporation tax and customs revenues should suffice for the purpose. Additional income, if required, should be generated by increasing the rate of direct taxes.
The process of the transfer of power to the people should be gradual lasting not more than three years. The parliament should amend the constitution and each provincial assembly legislate laws to empower the people in the respective province.
The Federal Legislative List Part II should be revised. Except for the subject of regulation of river waters all its subjects should rest with the provinces.
The powers of the Senate under Article 73(1) need to be extended to money bills. Once the jurisdiction of the federation has been reduced to the subjects mentioned in the foregoing, there is no reason why all the legislation should not be approved by the Senate. Money bills should go to the Senate as well.
The appointment of governor should be subject to confirmation by the provincial assembly. High Court judges should be appointed by the provinces. Inter-provincial trade and commerce should be made totally free. The National Economic Council and the National Finance Commission will become redundant.
Through new articles, the constitution should provide for:* Making the power of the executive to borrow internally or from abroad or to guarantee any loan or investment from abroad subject to the prior approval of parliament.
* Offering constitutional protection to all elected bodies or persons against dismissal, suspension or veto of the executive authority.
* Provinces as well as districts, cities and towns should have authority to levy taxes on income, wealth and land.
* The important questions of the power of the federation to declare emergency and of the federal aid to civil power to restore peace in the provinces needs to be examined in detail.
The Supreme Court should have all the power to prevent violations of human rights throughout Pakistan. In other matters, the role of the Supreme Court should be restricted to inter-provincial disputes and questions of interpretation of the constitution. For the adjudication of crimes under federal laws, new federal courts should be established.
All Pakistan civil services should be restricted to federal subjects only.
The provinces should exercise legislative authority over all the subjects not mentioned in the federal list in addition to those in the concurrent list. Executive jurisdiction, however, should be shared with the district and the lower levels of governance, according to law, in the following subjects: administration of justice police, land, education, health services, agriculture, communications, veterinary, housing and physical planning, culture.
The district level democratic administration should relieve the provincial administration of all the responsibility and authority over matters which can be administered and adjudicated locally. We should do away with the colonial system of police and magistracy and replace it with a dispensation in which the coercive power of the state is exercised in a manner that the people consider it to be the exercise of their own power and fulfilment of their own wishes.
Serious crime should be investigated and prosecuted at the district level while others should be dealt with at the sub-district level and below. People should be associated in registration of a case when required as well as in all adjudication during the course of the trial.
The laws relating to the title to agricultural land, procedure of demarcation, settlement of ownership disputes, rights of cultivation, disposal of the produce between the cultivator and the owner and of collection of revenue are also major devices used for oppression and corrupt practices. There is no need to have boards of revenue or commissioners. On the question of land, the district should have the final jurisdiction.In the field of education, the province should finance the higher institutions of learning and research like universities. Colleges and schools should be left with the districts, sub-districts and the private sector.
In the field of health, the province should play a pivotal role in education, research and preventing outbreaks of epidemics from one district to another, training of doctors and paramedics as also in general education of the people on questions of health and hygiene.
Major inter-provincial and inter-district roads should be with the province and the rest with the district. Major city roads should be with the city, city neighbourhood roads with the neighbourhood and village roads with the village. Housing and physical planning should be with the district and the city.
These are the basic requirements of empowering the people and ushering in a genuine democratic order, the only way to rebuild a peaceful progressive state.