By Daniyal Aziz
In Pakistan, legislative initiatives to devolve powers from the provincial to the local level and from the federal to the provincial level have not been well received by the elite bureaucracy.
The federal and provincial Civil Service Acts, purportedly implementing Articles 240 and 241 of the Constitution, provide for separate services for the affairs of the federation and those of the provinces. However, this has actually never been achieved. Instead constitutional provisions have been side-stepped by preserving pre-1973 constitutional arrangements through saving clauses.
This has created an essential tension. On the one hand, there is the unitary federal bureaucratic cadre structure beginning at the tehsil level at Grade 17 and culminating in the Federal Secretariat at Grade 22. On the other hand, the Constitution of Pakistan provides for a federal system of government at three tiers i.e. federal, provincial and local.
This structural tension has created the incentives and the structures to resist and relegate all attempts at devolving authority and responsibility to lower echelons of the federal state as the seniority of the unitary bureaucracy is the antithesis of a federal structure with functional assignment at various sub-national levels. This article describes the interplay of these tensions and their impact on the efforts to empower the federal nature of the state as enshrined in the Constitution.
During the early years of this millennium, the government of Pakistan planned devolution of powers in three phases. The first was provincial to local government devolution which witnessed the introduction of the new local government system, the new Police Order as well as a host of other reforms to consolidate and support an effective system of political power and authority at the district level and below.
The second phase was to encompass devolution from federal to provincial level. Detailed research on this matter was undertaken and completed by 2002-2003. The government of the day was seized of the decisions regarding the implementation arrangements and content of the reform in 2004-2005 when political events waylaid the effort. Subsequently, the government that came into power in 2008 took up this phase of the devolution agenda. They implemented it in the form of the unanimously passed 18th Constitutional Amendment. The 7th National Finance Commission Award further buttressed this amendment. The award transferred additional resources to provinces to facilitate carrying out newly devolved functions.
The third phase was re-organisation of the provinces to adopt the erstwhile federal functions and shed the local government functions. This phase never took place. The second order civil service and taxation reforms were to commence once the complete national functional assignment had revealed itself.
Work on these reforms went on simultaneously and was at various stages of completion. It included provisions for a National Executive Service, a Provincial Executive Service and a Local Government Service.
Reform of the civil service was thwarted early in the implementation of the first two phases. The incentives and structures favouring reversal of devolution, however, remained intact. Therefore, the claw-back began soon. Withdrawing the devolved political authority and responsibility from the local governments was easy. All it required was an Act of the respective provincial assembly. However, the Constitution enshrines federal-to-provincial devolution. It is a lot more difficult to achieve as it requires a two-thirds majority in both houses of the parliament.
After the 2008 elections the local government system was practically held in abeyance as new revision of requirements were being worked out by provincial governments supported by the federal government. Soon after implementation of the 18th Amendment, new ministries with creative names were hatched. Interestingly, entire education departments in cities tens of times the size of Islamabad, were being governed by executive district officers (Education). In the capital, however, the need for a whole federal ministry was discovered. By one count, a dozen federal ministries, devolved under the 18th Amendment were basically given creative names to skirt legal necessity.
The reasons were often given a technical cover but the underlying problem was largely bureaucratic privilege. Officers of the federal cadre can only get Grade 22 as federal secretaries. There are also a host of Grade 21 additional secretaries and joint secretaries etc. When a ministry is devolved, the posts become redundant and are struck off. The real problem was not “coordination” and “rationalisation” in the aftermath of the 18th Amendment. Rather what would happen to promotions in the absence of posts abolished by devolution and where high-grade officers be placed now that suddenly there were fewer posts.
At the local government level the same phenomenon evolved in a different iteration. Major cities under the local government law provided for district coordination officer to be a Grade 21 officer mainly in erstwhile divisional headquarters. The secretary to the provincial government, however, is a Grade 20 officer. Resultantly, many districts had officers heading the administration who were senior to the Grade 20 secretaries to provincial governments. This led to a peculiar situation where the officers at the lower tier of government were senior in rank to the officers heading the departments under whom they functioned.
In Punjab, provincial department heads would call meetings, with district officers senior to them, to “rationalize” and improve “coordination” through a new law. After several unsuccessful attempts to reach a consensus, the senior officers from the districts found merit in the new system. An amendment in local government law was passed in the provincial assembly on a day when the opposition was protesting on the streets. The rules were suspended to reduce the grade of the district coordination officer to 18. Soon after “seniors” were posted out of the districts and a “consensus” on the “new” local government law was achieved. Even after the promulgation of the new law, the elections didn’t take place till the court intervened.
Pakistan has a federal constitution and a unitary civil service. This was set up under the garb of Civil Service of Pakistan (CSP) rules soon after Independence. Posts of the federal government that were previously reserved for officers of provincial governments were turned on their head. Instead, posts in provinces were reserved for officers of the federal government.
Articles 240 and 241 of the constitution provide for the civil service of the federation and the provinces. The previous unitary structure would only continue until new laws were enacted to provide for constitutional requirement. Interestingly, the laws that were promulgated to provide constitutional provisions actually preserved the system in place before the promulgation of the constitution. These laws rely on a saving clause that finally relies on the Government of India Act, 1935. This in turn holds these illegal as it only allows joint services for the federation and provinces in financial matters.
If Pakistan is to be a federal republic, we must start at the beginning by federating the unitary civil service in accordance with Articles 240 and 241. If the incentives and structures of the unitary bureaucratic edifice are left in place, seniority, promotions and postings will continue to be the spearhead of the rollback of devolution eventually watering down all the attendant benefits if not completely reversing any progress.
The writer is a former chairman of the National Reconstruction Bureau and a former federal minister for privitisation. He is also the recipient of Tamgha e Imtiaz
An earlier version of this post appeared as a Special Report in The News On Sunday