Spirit of Federation

Spirit of Federation

What is Federalism?
Federalism is a political concept in which state powers and functions of government are divided between the central government and the constituent political units. Essentially this division of power takes place constitutionally. A federation comes into existence when the power to govern or the sovereignty is shared between the national and provincial or state governments while adhering to democratic rules and institutions.  While dividing powers, the federal government is entitled to exclusive federal powers, while the constituent political units are entitled to certain state rights. In addition to this both the governments share certain powers known as concurrent powers.

Characteristics of Federalism
The concept of federalism follows certain characteristics which are referred to as the federal form of government. Listed below are the essentials of federalism:
1.    Constitution is Supreme
As mentioned earlier a federation is the agreement between sovereign states or central government and its constituent units, where the role of each is defined in terms of the specific powers that can be exercised by the parties to the agreement. In Pakistan, through 18th Amendment some powers have been given to provinces. This crucial agreement takes form in the shape of a constitution, which defines the extent of authority and the powers that can exercised by each form of government. As a result, constitution of a federation is considered as the supreme law that will prevail in the federation. A gauge of its supremacy is that no law, either provincial or federal, can be enforced if it is against the constitution. If a change or amendment is required in the constitution then it must be through the process highlighted in the constitution itself. In order for the supremacy of the constitution to prevail, the following conditions need to be fulfilled:

  • The constitution needs to be written

A written agreement has seal of authenticity about it and it has more weight. This is true for all kinds of agreement. Written form of agreement has more authority than any other form of agreement. Similarly, as mentioned earlier, the constitution is an agreement between the federal government and its constituent political units and it is necessary that it is present in written form in order to serve as conclusive proof as to the powers granted to each form of government. A written constitution removes any doubts that may arise regarding the functions and responsibilities delegated to each form of government.

  • Rigid Constitution

This characteristic demands that the method of amending the constitution needs to be made certain and complex. This will guarantee that the constitution remains supreme as any amendments required will have to be made through the highlighted process. This process usually involves all stakeholders making it transparent and providing authority to it.

  • The Amending Body should be Sovereign

Federal and provincial governments, both use the constitution to gain power. Inother words both forms of governments derive their power form the constitution. This is why neither of them can be held sovereign. As a result, the body in charge of amending the constitution is considered to be sovereign.

2.    Distribution of Power
In a federation both the federal and the provincial governments receive their share of power. There is no specific method for distributing powers between the two forms of government. There is no set formula according to which the powers are divided between the federal and the provincial governments. Generally, matters which are of local importance are handed over the provincial governments, while matters which are national importance are given to the federal government. Other than this there are three distinct methods of power distribution prevailing in the world today, namely:

  • The American Method:

This method dictates that the powers falling in the share of the central government should be written down and recorded, while the remaining powers known as residual powers should be handed over to the provinces. This method is aimed at strengthening the provinces or states and in comparison the center is weak.

  • Method followed in Canada

The Canadian method of distribution of power is just the opposite of that followed in America. Canadian system requires the powers of the provinces to be written down in the constitution. In contrast the residual owners granted to the federal government. This method seeks to maintain a strong center while the provinces have a lesser share of power.

  • Indian Method

The Indian method was introduced under the 1935 Act and it expressed the need for the creation of three lists. One of the lists, the Federal List, contains the powers delegated to the federal government. The second list is called the Provincial List and it contains the powers designated to the Provincial governments. Lastly, the third list contains those powers which are to be shared or which can be exercised by both the federal and the provincial governments, it is known as the concurrent list.

3.    Supremacy of the Judiciary
A federation’s constitution is its essence and it forms the most basic law of the country. if the federation is to exist, the constitution needs to be strengthened so that it cannot be violated. if the constitution is breached then the federation cannot remain intact. This raises the need for the formation of an agency which ensures that neither of the two governments, federal and provincial, violates the constitution.  It is the responsibility of the judiciary to uphold the constitution and guard its sanctity. The functions of the judiciary in this regard, are as follows:

  • Judiciary has to play an effective role and fulfill its responsibility in case of any dispute, pertaining to any provision of the constitution, which may arise. It is the duty of the judiciary to interpret any such issue.
  • Judiciary is required to act as the guardian of the constitution and to voice up its concerns if the constitution is being challenged in any way. It is the judiciary’s duty to any law, which is in conflict with the constitution, as unconstitutional regardless of it being a central law or a provincial law. This authority of the judiciary is referred to as the power of judicial review.
  • One of the major roles of the judiciary is to interpret the provisions of the constitution under the Doctrine of implied powers. This comes into play at the time of making constitutional amendments. The formal method of amending the constitution, as mentioned earlier, is quite difficult.  It is the judiciary’s job to come up with a liberal interpretation of the constitution’s provision in order to facilitate the required amendments. Such interpretations by the judiciary make the method more flexible and relatively easy to work with.

4.    Bilateral Legislature
As explained previously, a federation has two types of governments in place. These governments have different rights and have varying interests. These rights and interests of the two different governments need to be protected and this is done through a bicameral legislature. these interests are presented by lower and upper houses, where the lower house serves as the representative of national interests and the upper house represents the interests of the provinces or states. There are different criterions for both the houses to determine representation. The lower house determines representation on the basis of population, so that the province with the most population will have the highest representation in this house. For example, in Pakistan, the province of Punjab will have the highest representation in the lower house. Representation in the upper house, however, follows a different method of representation. Here, representation is determined on the principle of parity. This means that regardless of the size of the size of the state, it will have equal number of seats. This method prevails in countries like USA and Pakistan.

Benefits of a Federation
Listed below are certain benefits of a federation government system:

1.    Protection from Tyranny
The fundamental benefit of a federation is that it restricts the amount of power falling into the hands of one man or institution. This serves to protect against tyranny. In a federation power is divided between the different layers of government, federal and provincial, in the form of three distinct branches. This restricts the power available to the national government and as a result shields the nation from tyranny and other evils.

2.    Increased Participation of Citizens
Citizen Participation is increased when the power structure is decentralized. A federation ensures that power is not concentrated in the hands of a national government; instead power is shared with provinces or states. As the provinces are relatively closer to the common people, citizen participation increases.

3.    Rise in Efficiency
As the responsibility and power is shared with states, efficiency increases on the whole,  as states  can now solve their own problems. In contrast if all problems are solved using a national solution then efficiency will decline as the solution might prove to be effective in some states and ineffective in others. In order to increase efficiency states should be allowed to find solutions to their own problems as they are aware of the laws and policies which work best to address their problem.

4.    Innovative Laws and Policies take shape
Each state forms its own government in a federation and this generates a large pool of policies. The ones which prove to be effective at state level can then be tried at the national level.

  • Increased Responsiveness to the Needs of the Citizens

The responsiveness of a government entity to the needs of its citizen is dependent on its closeness with its citizens. It follows that the closer a government entity is to its citizens the more responsive it will be to their needs. As a result state governments are more equipped to listen to citizens needs and are able to respond to those needs more effectively when compared with the national government.

Conclusion
Keeping in line with this spirit Senator Raja Muhammad Zafar-ul-Haq moved a resolution in senate which was passed unanimously on 13th August 2015. It clearly stated that the House of Federation shall continue to protect the rights of the Federating units, in turn reinforcing the idea that a federation system of government ensures efficiency and the rule of the people. It serves to establish the rule of democracy by taking the decision making government closer to the citizens, improving accountability and empowering the citizens to choose their representatives. This structure, on the whole, serves to increase efficiency and transparency. Much depends, however, how it is practiced.

Mirza Kashif Baig is a MBA from IoBM and has been actively contributing for Monthly Interaction for over a year.

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