The terms ‘federal’ and ‘unitary’ have been associated with the task of framing Pakistan’s constitution even before the partition of the subcontinent. The claims of a federal constitution, however, are greatly enhanced by geographical conditions and the inveterate hiatuses in culture, language and history. Albeit, notwithstanding the dictates of indigenous realities, a small but vigorous element has recently espoused with fanatical zeal, the cause of a unitary state, chiefly on the ground that it would eradicate the ugly and soul-destroying virus of provincialism.
As a rule, we use political terms loosely, almost irresponsibly, without a clear and distinct meaning. Therefore, in the interest of legitimate understanding, it would seem sensible to define terms at the outset. Needless to emphasize, definitions vary with the outlook of the definer, no less in the case of political terminology.
K.C. Wheare, the distinguished historian of Oxford, makes a lucid distinction between the federal principle and the federal constitution. It is important to keep this distinction in mind if a proper understanding of the subject is desired. The federal principle means “the method of dividing powers so that the general and regional governments are each, within a sphere, co-ordinate and independent.”
There is, however, no consensus of opinion on this issue. Many authorities find the crux of federalism in a different principle.
The contention of a number of theorists is that the federal principle consists in the division of power in such a way that the powers to be exercised by the general government are specified and the residue is with the regional governments. According to this view a government is not federal if the powers of regional governments are specified and the residue given to the general government. The Constitution of the United States follows this principle. It specifies certain subjects over which the general legislature has control and provides that powers not so delegated remain with the states.
“This test,” says Wheare, “concentrates on a relatively superficial characteristic of the American Constitution. The essential point is not that the division of powers is made in such a way that the regional governments are the residuary legatees under the Constitution, but that the division is made in such a way that, whoever has the residue, neither general nor regional is subordinate to the other.”
Another way of distinguishing the federal principle is by saying that in a federal system both general and regional governments operate directly upon the people, whereas in a confederation the regional or state governments alone operate directly upon the people. This also is insufficient. For instance, in the Union of South Africa, the general government and the provincial governments all operate directly upon the people, just as do the general and regional governments of the United States, and yet, there is a distinct difference between the two constitutions. In South Africa the regional governments are subordinate to the general government, while in the United States they are co-ordinate.
There are, of course, many other views on the subject. The lengthy discussion by Lord Haldane in the course of his judgment in Attorney-General for the Commonwealth of Australia vs. Colonial Sugar Refining Company Limited is thought provoking. But in the ultimate analysis, suffice it to say, the federal principle isolated from all the qualifications is, “A form of government in which sovereignty and political power is divided between the central and local governments, so that each of them within its own sphere is independent of the other.” This is how Sir Robert Garran defines it in the Report of the Royal Commission on the Australian Constitution (1929).
Having defined the federal principle, we turn to the meaning of a federal constitution. A simplified but nonetheless accurate procedure of determining whether a constitution is federal or not is by observing whether the federal principle is predominant in the constitution. If it is predominant, the constitution is federal, if on the other hand, there are many modifications in the federal principle, then that constitution cannot be called federal. That is the criterion. Thus, it is essential to define the federal principle rigidly and to apply it broadly in determining the form and character of the constitution.
In marked contradistinction, a unitary state is one centralized state, not divided into independent parts, in which only a small degree of local communal self-government based upon a law worked out by the central authority is admitted. In a unitary constitution, sovereignty is not divided between the central and local governments but vests indivisibly in the centre; the regional governments, if they do exist, are subordinate, not co-ordinate to the general government. Thus, in a unitary government there is no partnership between the central and local governments, there being only one authority in which all power vests. In view of the oneness of the system, the need to draw a distinction between the principle and the constitution does not arise.
Terms have been defined. Now let us scrutinize the difference, if any, between the federal and unitary forms of government. On this issue, there is a conflict of views. To some there is absolutely no difference in principle; the distinction, they argue, is only a transitory phase which whither away with centralization of law. Others maintain that not only is there a substantial difference between the two systems but also that the dichotomy is of a permanent nature.
The protagonists of the former view argue that there are inherent qualities in all federations which increase the strength of the general governments at the cost of the regional governments. The items which reduce the autonomy of the local governments are invariably in the control of the general governments and, therefore, the centralization of law is unavoidable. The general governments control defence and have the power to make war and peace; it is they who have the control over finance, foreign relations and foreign trade. A government endowed with such formidable powers, particularly finance, is bound to absorb the energies of the local governments. Thus, in view of this, Seeley says, “I deny then that between the unitary state and the federation or federal states there is any fundamental difference in kind.”
In his Federal Government Wheare states that the main factors which have caused general governments to increase in strength at the expense of the regions are “war, economic depression, the growth of social services and the mechanical revolution in transport and industry. War and economic depression demand unitary control if their problems are to be effectively treated, and they impose financial strains which only the general governments have been able to bear.” The prodigious growth of social services and the ever-increasing requirements of the modern community make it impossible for the local governments, with their limited resources, to incur the costs of ever-enlarging demands. Here, too, it is the centre which must assist the regional governments. And finally, as Wheare observes, “the revolution in transport and industry makes so much of life inter-state instead of intra-state, that large areas of activity come within the ambit of the general governments’ control, until finally, in the United States, crime itself becomes a matter for Congress.”
On account of these factors we meet the argument that in reality the difference between the two systems boils down to the degree of centralization of the legal order. At the initial stage, the degree of centralization of the general government in a federation is not as intense as that of a unitary government, but gradually it becomes so intensely consolidated that, in principle, the distinction vanishes.
In this respect, Professor Kelsen says:
“Only the degree of decentralization distinguishes a unitary state from a federal state. And as the federal state is distinguished from a unitary state, so is an international confederacy of states by a higher degree of decentralization only. On the scale of decentralization, the federal state stands between the unitary state and an international union of states. It presents a degree of decentralization that is still compatible with a legal community constituted by national law, that is, with a state, and a degree of centralization that is no longer compatible with an international legal community, a community constituted by international law.”
This view, however, is disputed by many authorities. Wheare, for instance, says that the view that a federal government is only a stage towards a unitary government is “a prophecy, not an historical judgment.” Granted, there are factors such as war and depression, finance and foreign trade which increase the strength of the general governments, but that is not the whole story. The other side of the picture is that, simultaneously with the growth of the general governments, regional governments also expand. “In all the federations the regions now perform functions which, at the establishment of the federations, they have performed either not at all or to a much less degree than now,” says Wheare, and he concludes, “That there has been a strong increase in the sense of importance, in the self-consciousness and self-assertiveness of the regional governments. This has gone on side by side with the growth in importance of the general governments and it has obviously been stimulated by it.” Thus, from this vantage point state rights are far from dead and federalism is anything but obsolescent.
The eminent Laski, in his Grammar of Politics, states with compelling force that authority is federal because of the inextinguishable differences between man and man. So ably does he propound this theory that it is necessary to quote him at length.
“We are never, as human beings, wholly included in any relation. About us is always an environment which separates us from others, or, at the best, makes our union with them but a partial one.... The unity we encounter in the world of social fact is never complete. For while we may all seek an end which can be described as identical, the end is one only in the description. The good life for me is not the same as the good life for you. It has, of course, resemblances. In a well-ordered society, it has sufficient resemblances to make social peace effective. But resemblances do not involve identity. The things we want do not flow together with each other.
“Our relations are not like chorus in a great symphony in which what is important is the ultimate impression conveyed. Each piece of our experience is real for us: and therefore, the attachments of each piece guide our personalities into a system of loyalties. How that system maintains its equilibrium, where, at any moment, the emphasis is to be thrown, is a matter that each of us must decide. For that system is ours and ours only.
“The political inference is, I think, clear. The structure of social organization must be federal if it is to be adequate. Its pattern involves, not myself and the state, my groups and the state, but all these and their inter-relationships.
“In such fashion the state might become a genuine search for social integration. It might cease to be the organ of a few because its ‘Will’ would become instinct with the desires of the many. It would be responsive, not to the purposes of those whose power makes their demands immediately urgent, but, to all who have individuality, they would preserve and enlarge. They would be able to make their desires articulate. They would be able to feel that their desires were weighed, not in terms of the economic pressure they represent. but the social value they embody. Their experience of life, their sense of the meaning it has for themselves, would be taken in account. Such a state might be the true organ of a community, the meeting ground on which its varied purposes found the means of a unity adequate for its general enrichment. It would not impose a uniform rule. It would recognize that the material is too diverse to permit of such simplicity.
“A state in which the art of politics is, in its general terms, apprehended only by a few can never enriches the lives of the many. For it can never genuinely know the wants of the many. It can only roughly imagine those wants by assuming their identity with the wants of its own dictators.”
The intention is not to take up cudgels on behalf of one or the other view. However, for the sake of argument, even if it is true that the distinction is only of a temporary nature, it cannot be denied that in many countries conditions exist which make it imperative for those countries to have a federal government for at least that temporary period. To superimpose a unitary government on a decentralized society is bound to culminate in degeneration. An attempt to artificially hasten the process of centralization imperils forever the prospects of homogeneity. Hence, it is the transitory phase itself which is of fundamental importance in assessing the need for a federal government.
Having ended the general survey, we turn to some specific cases in which the transitory requirements and allied circumstances have made federalism indispensable. In the United States, the vastness of the country, the conglomeration of diverse races, the historical ties of alien nations like Britain, Spain and France with certain states in the Union made federalism the sine qua non of unity and national consciousness.
Perhaps the most outstanding example is the Soviet Union. Marx and Engels had dogmatic views on the subject of federalism. They considered the system as a survival of federal particularism and a hindrance to economic and cultural development. “The proletariat,” wrote Engels, “can use only the form of the one and indivisible republic.” But in spite of such fixed views, both Marx and Engels did not altogether rule out federalism. They admitted that in special circumstances federation might be a “step forward,- a link towards integration, serving as a form of transition toward the centralized unitary state.
From its inception to this day, the Soviet Union indisputably remains a federal government; and therefore, in accordance with the views of Marx and Engels, it is passing through the transitory phase, the inescapable stage toward “the one and indivisible republic” envisaged by Engels. In the face of such set opinions, the Soviet leaders deserve the fullest admiration for having had the wisdom and vision to recognize the special circumstances which compelled them to frame a federal constitution.
Since 1917, by a series of constitutions, federalism has moulded into one geographical unity a vast expanse of territory stretching from Asia to continental Europe, comprising numerous nationalities, each with its own history, tradition, religion, race, custom and language. “Time and again, given a real democratic order, a federation constitutes only a transitory step to a really democratic centralism. In the example of the Russian Soviet Republic we see most graphically that the federation we are introducing will serve now as the surest step to the most solid unification of the different nationalities of Russia into a single, democratic, centralized Soviet State.” said Lenin, the once-avowed opponent of federalism.
Stalin, who was himself a member of one of the minority nationalities, had been entrusted with the problem of finding a suitable compromise between the economic, political and cultural autonomy of the component nationalities on the one hand, and the monolithic dictatorship of the proletariat on the other. The emphasis placed by Stalin on local autonomy was bast summed up by himself when he said that no unification of peoples into a single state could be firm unless these peoples themselves voluntarily so decide. Hence, each union has its own constitution, conforming to the federal one: its territory cannot be altered without its consent and it retains the right “freely to secede from the USSR.”
In India, the constitution of 1935 was a federal one, or, as some would prefer to call it, quasi-federal. The diversity of religion, race, language and culture in the provinces and states gave the framers of the constitution little scope for considering other alternatives. For more or less similar reasons the 1950 constitution has followed the principle of federalism. Further, in India no attempt has been made to amalgamate provinces; on the contrary, one more province has been created in Andhra.
In Pakistan, the problem of constitution making has been sui generis. The men concerned with Government have waltzed in and out of the labyrinth of casuistry. Prior to the Partition of the subcontinent, the Quaid-i-Azam had unequivocally declared that in Pakistan the equality and autonomy of the component units would be guaranteed by the constitution.
The founder of Pakistan envisaged a federal constitution not because of any pre-conceived prejudices against other forms of government but because he was determined to give the country a constitution which would suit the genius of the people.
In view of the ethnic, linguistic and cultural differences of our relatively decentralized social order, and. in view of the chasm of one thousand miles between East and West Pakistan, only a federal government could foster the solidarite sociale of the people.
Undivided India was not a nation but a continent as populous and polyglot as Europe and as varied in language and race, in literature and religion, in custom and art. Each invader had left his mark in the parts lie had harried. The intermingling of different races, taking their roots from palaeolithic times, had eventually produced an accretion of cultures.
Before the advent of the Moghuls, no concerted effort was made to knit India into a homogeneous unit. By the time the Moghuls had succeeded in this formidable undertaking, their decline had set in, and therefore, they were unable to consolidate their empire.
The intransigent dictum of Pax Britannica was Divide et Impera. For over a hundred and fifty years, the forces of integration were held in abyss by this basic tenet of the Anglo-Saxon ruler.
Some may argue that India had seen unity in the days of Asoka. This argument, if advanced, is incorrect. For one thing, even if the great Maurya emperor did succeed in extending his domain from the Northern tip of the subcontinent to the edge of Tamil land, many a century elapsed before Aurangzeb’s rule gave India a central authority once again. From approximately 240 B.C. to about 1700 A.D., India remained a conglomeration of diverse races. If Asoka had achieved a vestige of national consciousness during his illustrious reign, it had been completely undone by the time the great Moghuls re-established an Indian empire.
Furthermore, the concept of ‘nationality’ as we know it today was utterly unknown in the Maurya and Gupta eras, and hence, there could not have been a conscious endeavor in those far-flung days to bring about national solidarity through the medium of a strong centre.
In his Discovery of India Pandit Nehru, the avowed opponent of the two nation theory recognizes the reality of India’s diversity.
“The diversity of India is tremendous; it is obvious; it lies on the surface and anybody can see it. It concerns itself with physical appearances as well as with certain mental habits and traits. There is little in common, to outward seeing, between the Pathan of the North-West and the Tamil in the South. Their racial stocks are not the same, though there may be common strands running through them; they differ in face and figure, food and clothing, and, of course language.”
In fairness to Pandit Nehru, his Nehruian conclusion must be quoted; else he is liable to be misinterpreted:
“Yet with all these differences, there is no mistaking the impress of India on the Pathan, as this is obvious on the Tamil.”
These deeply entrenched differences did not vanish into oblivion on the Partition of India. Although the supreme unifying force of Islam cut across gargantuan barriers of race and culture, language and custom, to galvanize a heterogeneous people into an independent state, the intra-state dichotomies dating back to primeval times remained unerased.
It is not in the spirit of Islam to produce cohesion by totalitarian methods. Its ways are voluntary and the phenomenon of Pakistan was rendered possible only because of the indefatigable virtues or such abiding methods. The magnanimous spirit of Islam cannot pollute itself by exercising compulsion. Hence, the levelling of cultures by coercion would, in a sense tantamount to apostasy.
Never in Islam’s distinguished history have arbitrary standards been superimposed on the territories that have gradually come within the fold of Islam. The richness of Islam’s heritage stems not from the growth of a drab, monotonous scheme of life but from the dynamic assimilation of diverse cultures and values. The tolerance of Islam, in contradistinction of the narrow-mindedness of medieval Christianity, has blessed the Muslim people with a legacy in which universal virtues predominate.
The genius of Islam, though Arabic in origin, has not been confined to Arab traditions and customs. It has been shaped by a blending of almost all Eastern people and a handsome portion of the Occident. Generally, the crusaders of Islam were exceptionally tolerant with the people who came in conflict with them. Not only did they leave the culture and language of the conquered intact but also their geographical units. When Muhammadbin-Qasim conquered Sindh, he left the entire administration in the hands of the local people. The only condition imposed upon them was that they recognize the sovereignty of Baghdad.
The synthesis of Islamic culture has been essentially a federal process. To take a hypothetical case: even today, if the Arab states were to merge into a compact unit they would do so only on a federal foundation. Notwithstanding the fact that the people of Arabia have a host of common affinities such as religion, race and language, they would, if at all merge on the basis of a loose federation in which the autonomy of the acceding states is protected by the fundamental law.
Such a merger would unquestionably establish the unity of the Arab people and also protect the equality of the component states. Federalism alone is the formula of so noble a concert because, despite what some may think, federalism is not the antithesis of unity. It is the rampart of diverse heritages within a larger unity.
If, however, the concept of unity is congenital identity with in distinction in every facet of life, then, even an ultra-unitary constitution is grossly inadequate. But if unity means the acceptance of certain fundamental loyalties by a people of a geographical entity, then the best method of protecting these loyalties is through federalism, if of course, the degree of centralization is not high enough for a unitary government to exercise control from one indivisible centre.
In acquiescence to these fundamental truths, the 1940 Lahore Resolution stipulated that Pakistan would have a federal government. The Objectives Resolution, sponsored by the trusted and able lieutenant of the Quaid-i-Azam, reiterated the pledge in unambiguous terms.
For over fourteen years, the rank and file of the Muslim League had in wisdom acknowledged the necessity of framing a federal constitution. The intrinsic conditions fortified by the lessons of history had erected an impregnable case for federalism.
The analogy between Quebec and East Bengal is of immeasurable value. The almost fanatical desire of the people of Quebec to protect their separate culture, race and language within the larger unity of the Canadian nation, is as great as that of the people of East Pakistan. A constitution antipathetic of such sensitivities inevitably stirs recalcitrance.
In the face of such imperishable circumstances, antagonism towards a federal constitution was not to be expected. The compulsion of logic, however, has rarely been a safe guide in assessing the requirements of the homo sapien. In this particular case, however, a plethora of conditions made federalism inescapable.
But agile minds can discover illusory outlets. In this respect, Mr. Mumtaz Daultana, a former Chief Minister of the Punjab, on his own admission, stated as late as on April 23, 1954 that:
“I have always advocated a unitary form of Government for Pakistan, even though I have been in a minority of one.”
As if that were not enough, he went on to express his -views on federalism in the following words:
“As far as I am concerned, I have always stood against confederation or anything that practically amounts to that. The question of reserving the foreign exchange of one province for the use of that province alone or of confining the central services functioning in one province to the citizens of that province, is to me as ridiculous as to suggest that Punjabi soldiers should only be used to defend the Punjab, or that the public loans raised from the resources and population of one province should be exclusively used to the benefit of that province or area. Such narrow provincialism would, to my mind, be destructive both to the provinces of Pakistan and to the prosperity and greatness of this great land of ours.”
A more misconceived conception of federalism has still to be found. Such dangerous over-simplifications have in the space of three odd months precipitated a dangerous metamorphosis. In this period, the lone voice of Mr. Daultana has become a shrieking crescendo in West Pakistan. Like John the Baptist, the former Chief Minister of the Punjab has succeeded in alluring the people of West Pakistan to the path of righteousness. Now the nation awaits the Messiah whose hand will transform rich diversity into barren identity.
John Stuart Mill said, “Political institutions are the work of men; owe their origin and their whole existence to human will. Man did not wake on a summer morning and find them sprung up. Neither do they resemble trees, which once planted, ‘are aye growing’, while men ‘are sleeping’. In every stage of their existence, they are made what they are by voluntary human agency,” Mill was hopelessly wrong.
Literally one fine summer morning in 1954, the federal principle, which had been evolved in every stage of its development by voluntary human agency was suddenly declared inherently discrepant by an array of powerful politicians.
Efforts were made to scrap a federal constitution in the making and put in its place a unique hotch potch which would accommodate ‘the one unit scheme for West Pakistan’ in a device that would ostensibly reconcile the irreconcilable, that is, blend federal and unitary governments.
Without giving the people an opportunity to examine the proposal, and without rendering a blueprint of the hotch potch, a relentless effort was made to present the nation with a fait accompli.
The proponents of the new scheme bellowed in vague generalizations that the amalgamation of West Pakistan into one unit would eradicate provincialism and reduce national expenditure. In actual fact the scheme, if implemented, would augment disintegration.
Above and beyond the fact that the proposal to convert West Pakistan into a single unit would be a negation of the historic 1940 Lahore Resolution and the Objectives Resolution, it would be totally unacceptable to Kashmir if and when that state becomes a part of Pakistan.
It is fairly obvious that Kashmir is most determined to guard its autonomy. Its tussle with India on this issue is too well known to be repeated here. It is, therefore, unlikely that the leaders of Kashmir too, will tergiversate and renounce all that they have been proclaiming with passionate conviction throughout these long and arduous years of struggle. Are we then to give preferential treatment to Kashmir and accept it at par only with East Bengal, or, have we forgotten Kashmir altogether and cannot envisage a West Pakistan with Kashmir included?
The dance made over One Unit turned into a fetish. All other forms of government were labelled anti-national, in particular, the federal one. In so thunderous a clamour a compromise on the new order seemed unlikely.
But strangely enough, when the resistance to the scheme gained momentum, a good number of the protagonists of One Unit came out with a compromise plan, which they, in their inscrutable wisdom, called “Zonal Federation.” The electrifying somersault, in itself, speaks volumes for the bankruptcy of their principles.
Thus, the people of Pakistan had to digest another absurdity. Out of sweeping political oscillations had emerged a compromise which added insult to injury. The conspicuous features of the Zonal Federation were that it had no precedent in history and that nothing was known of its details beyond the repetition of the cliché that it would destroy provincialism.
Some off-the-cuff idea of it conveyed the impression that it would usher in a top-heavy paraphernalia which would shoot up the expenditure on government to Himalayan heights. Individuals who had supported the One Unit scheme on the ground that it would reduce expenditure were the self-same people who associated themselves with a counter-proposal which would milk dry the national exchequer. This was the quintessence of audacity.
Political vicissitudes are such that, at the time of writing, the Zonal Federation proposal has been shelved aside and the One Unit scheme has reappeared with a vengeance. After a tense period of hidden tussle, the advocates of One Unit have regained political supremacy. An ex-Minister of the Central Government who credits himself with the authorship of the formula has said that the writing on the wall is clear, and that the end of provincialism is near.
For whatever it is worth, the writing is clear on each and every wall, but as for the disappearance of provincialism—that is a matter of grave doubt. Out of the provincial rivalries of two major units, a scheme is born which boasts of being the iconoclast of provincialism. Indeed, if executed, it will unquestionably annihilate the geographical boundaries of the smaller units but, with the same decisiveness, it will perpetuate provincialism.
The canker of provincialism is a recent malady and the causes for its hold are, among others, the high-pressure methods used to implement schemes such as One Unit and Zonal Federation. Geographical lines can be blotted out by a stroke of the pen, but cultural differences cannot be wiped out by legislation or executive ordinances.
It is futile to run counter to the movement of history. Diversity must be recognised and government must be so constituted as to stimulate the common weal.
By all means reduce the units of West Pakistan to the barest minimum, but do it on the principle of cultural, geographical and historical affinities and not by arbitrary whims.
Expenditure can be reduced by liquidating certain anomalies, which have been carved out of the provinces. Such amalgamations are logical and just and in no way jeopardize the federal principle. But a merger beyond the integration of the anomalies will create anarchy.
Federalism is not a voluptuous damsel over whose charm and desirability men differ. There can be no blind obsession for a legal concept. It so happens that the federal experiment has been put to test with remarkable success in countries where diversity prevails.
The examples of USA and USSR, to mention only two, are engraved in the annals of history. In both these great republics, tremendous economic, political and cultural progress has been achieved. Federalism has been instrumental in bringing about this progress.
Federalism has stretched the ‘manifest destiny’ of the United States to the borders of Alaska and Hawaii. It ties together into a national entity people from all parts of the world, with different languages and customs, religions and habits. They are all there—Greeks, Persians, Hindus, Mormons, Red Indians Chinese, each proud of his origin, his religion and his heritage, and at the same time, conscious of his greatness as an American. Likewise, in the Union of Soviet Socialist Republics, each republic is a world in itself, and yet cemented to a single legal entity by federalism.
Undeniably, in the not so distant future, the inexorable process of evolution will establish a synthesis in a these countries, including our own, as in the case of the United Kingdom. That is the time when the transitory phase reaches its apogee and federalism gives way to Unitarianism.