Pakistan: Importing America’s Federalism?Asif Saeed Memon

September 25, 2014

Atlantic Council

Constitutional History of Pakistan

Dominion Government of India Act (1935)

Constituent Assembly as legislature

CA dominated by Muslim League and increasingly perceived as unrepresentative

Loose federal structure including 5 provinces and some princely states until “One Unit” declared in 1954

De facto power becomes increasingly concentrated in the office of Governor General

Constitutional History of Pakistan

1st Constitution of Pakistan (1956) Promulgated by the 2nd Constituent Assembly in 1956

Islamic Republic

Parliamentary; unicameral with PM to be head of government and President to be ceremonial head of state (immediately flaunted by incoming President)

Federal; while maintaining One Unit

No clarity on elections

Lasted two years before President Iskander Mirza declared martial law and Gen. Ayub Khan appointed as CMLA.

Constitutional History of Pakistan

2nd Constitution of Pakistan Promulgated through presidential order

Presidential system

President to be elected indirectly through 80,000 “Basic Democracies”

Unicameral legislature

Provinces (albeit, under one unit) had high autonomy but de facto power was highly concentrated in the center

Constitutional History of Pakistan

3rd Constitution of Pakistan (1973) Promulgated by elected assembly (West Pakistan)

Parliamentary

Bicameral legislature

Federal with 4 provinces

Responsibilities split with a number of them split between center and provinces: federal, provincial and concurrent List

Council of Common Interests

National Finance Commission

Federalism in Pakistan up to 2009

Provincial autonomy was undermined through the following: One Unit successfully undermined the provincial autonomy of the

four Western provinces, especially the smaller three

Military rule

Federal control over revenue generation and lopsided distribution through the NFC

Federal control over policymaking through the concurrent list

Capacity issues of provincial governments

Pakistan’s federalism transformed (2009 – 2010)

Transition from 3rd Military era began with elections in 2008

Two major legislative victories in NFC award: (2009) and the Eighteenth Constitutional Amendment (2010) have transformed the policy landscape. Greater share of provinces in state revenue

Abolishing of the Concurrent List

Devolution of major policy areas to provinces

The current discourse about federalism

The re-centralization demand Devolution is failing due to:

Capacity issues at the provincial level

Policy divergence between the provinces is a threat to national coordination (in some more alarmist terms a threat to national cohesion)

Local government: Devolution interrupted? Devolution did not go far enough and powers need to be devolved

down to local government because:

Provincial politics are just as corrupt as national politics

Greater accountability can be achieved at the district level

The situation today

Capacity Problems at Provincial Level Floods, Fake medicine incident, curriculum development

Issues of coordination and international liaison Political fragmentation across provinces (each

province has a different political party in power) in 2013

The situation today

At the same time public discourse has not caught up with the changed situation.

A recipe for center vs. province battles as well as for legal challenges

Increasing popularity of National Social Policy making

Benazir Income Support Programme (BISP)

Current administration’s floating of a National Health Insurance scheme

Can we learn lessons from the US?

Keeping in mind that the two countries are not comparable? Federating units, but …

Almost no provincial revenue generation

Only four provinces with one representing more than half the population

Demographic, economic, ethno-linguistic variations, etc.

Can we learn lessons from the US?

States Rights The demand for provincial autonomy has been an important part of

Pakistan’s democratic struggle. A discourse similar to states rights is developing

Kalabagh dam

Higher Education Commission

National Health Insurance Scheme & central curriculum development

Adoption of components of the ACA (Medicaid Expansion) represents a major challenge to the success of the law. Similar issues are increasingly expected in Pakistan’s new federal environment.

Technocratic efficiency vs. democratic legitimacy

Can we learn lessons from the US?

Laboratories of democracy The US model of policy adoption at local and/or state

level prior to widespread adoption appears like an attractive way to avoid large national level policy failures.

There are some hints that suggest that inter provincial competition may play a similar role.

In the run in to the 2013 elections and since KP and the Punjab the two most competitive polities have attempted to out do each other

Can we learn lessons from the US?

State Capacity Issues of variation in state capacity have been a major

challenge to national reform in the US (e.g. variations in ACA implementation between some states)

Similar issues are beginning to emerge in Pakistan. Variations in practices, capacity, priorities and district-provincial relations.

Can we learn lessons from the US?

Accountability & the importance of local governance 10,000 democracies (Berkman)

Ideological opposition to ACA at the state level and practical buy-in at the local level

The debate over LG in Pakistan is an outstanding issue and is being battled over in each of the 4 provinces

Can we learn lessons from the US?

Regulatory frameworks & Inter state coordination Unlike the US most regulatory law exists at the federal

level (insurance, banking, etc.)

There are major holes in the existing regulatory frameworks (e.g. there is almost no regulation of private schools and hospitals)

Reciprocity between states/provinces (medical licenses, insurance coverage, etc.)

Can we learn lessons from the US?

Checks & Balances At the federal level

Senate able to block unpopular legislation

Increased role of judiciary.

Vertical Provinces better able to block federal over reach

Radical reforms become harder. Incrementalism and marginal changes become more likely. (e.g. Public Option under the ACA)

Preliminary Conclusions

As Pakistan’s federalism continues to evolve and the loci of policy making and implementation move away from Islamabad, it has become imperative to explore the policy framework establishing alternatives available to the country and its constituent provinces.

While it is true that no two countries are alike, it is still important to examine federal structures and policymaking within those structures to derive lessons for Pakistan.

There are lessons to be drawn from Brazil, Canada, Germany, India, Malaysia, the United States and Venezuela.

Preliminary Conclusions

The United States provides an interesting example for exploration

The Affordable Care Act (legislation and implementation) along with previous social sector reforms like SSA (1965), SCHIP (1997), NCLB (2001) and the MMA (2003) provides important lessons in how the large social sector reforms can be legislated and implemented within a federal system based on state autonomy.

Most respondents, however, argued that the challenges faced by the ACA legislation and implementation are more a function of the prevalent political culture/mood/zeitgeist as opposed to the specifics of American federalism.

A period of pessimism about American federalism.