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By: Sardar Qasim Ahmad Ali
Today the idea of Pakistan seems to have gone wrong. Deviation from the Constitution has, resulted in, inter alia, inter-provincial disharmony, lack of provincial autonomy, failure of democracy, institutional degeneration, law and order crisis and economic failure. We must remember that the Bengali revolt in 1971 was a direct result of denial of autonomy and be aware that this is becoming a driving force behind disaffection of our smaller provinces.
In theory the genius of the Constitution is that the federation would thrive externally while the provinces would excel internally. On paper the provinces had been given autonomy.
Article 141 of the Constitution grants the Balochis the right to make laws through their provincial assembly. Article 142 further elaborates that matters mentioned in the Concurrent Legislative List may be legislated upon, jointly, with the federal Parliament, however, those matters which are not identified in either the Federal or the Concurrent Legislative Lists, may be legislated upon exclusively by the provincial government. Furthermore, Article 143 clarifies that in case of conflict between any Federal Law and Provincial Law, the former would prevail.
A National Finance Commission (NFC) had to be set-up under Article 160. The raison d?~etre, for establishment and functioning of NFC was to designate, secure and provide an equitable distribution of resources of the country including net proceeds of taxes between the federation and the provinces. Unfortunately, however, this mandatory Constitutional provision has been violated by successive governments.
The matter was explained in a reported judgment, titled, Khalid Malik vs Federation of Pakistan / PLD 1991 Karachi 1, ?othe material produced before us fully established that in spite of insistence by the federating units for convening the meeting of these two important Constitutional institutions (the second being the Federal Consolidated Fund) and the warning and concern conveyed by the President in this behalf, the Government of Federation was not only avoiding the convening of the meeting of these institutions but showed no respect to the wishes of the Provinces?.
Article 161 was specifically incorporated to protect the rights of Balochis vis-à-vis natural gas. Again in theory the net proceeds of the federal duty of excise on gas and the royalty collected by federal government shall be paid to the province i.e. Balochistan, however, the Balochis, justly, complain that they are supplying gas to the rest of the country but not even a bubble of gas is made available to them and huge amounts of gas is usurped by the federal government. Only 2 percent population of Balochistan gets piped gas.
We should recall that the 1973 Constitution was passed with the support of NAP, subject, to the promise that provinces would be granted autonomy within 10 years, however, this was not done and the centre exercises power till this day, with unflinching but arbitrary support of the military. Furthermore, as it appears, mostly Punjabis and Pathans are recruited in the army, thus creating a bias for the Balochi and the Sindhi.
Instead of being granted autonomy, through an amendment in Article 268 (2) of the Constitution through the Seventeenth Amendment, the Provincial Assemblies have been, restrained, from legislating without prior permission of the President. The Police Order, 2002 and the provincial Local Government Ordinance?Ts of 2001 in the Sixth Schedule of Constitution which were also imposed under cover of the LFO/ Seventeenth Amendment Act, are not to be touched by the provincial assemblies for six years. Hence provincial assemblies cannot regulate local governments or police which have been legislated by the President solely.
The essential facts are that control over its natural resource i.e., gas, continues to be denied to Balochistan without bestowing any benefit thereon. The royalty on gas is paid to different provinces on different rates. Punjab gets Rs 222 per million BTU, whereas, Balochistan is given only Rs 47 per million BTU. Sui field?Ts average gas outpost is about 1 billion cubic feet per day-almost 45 percent of Pakistan?Ts total natural gas production, however, Balochistan had been given only Rs 6.5 billion in 2004, collectively, under the heads of development surcharge, excise duty and 12 percent for gas royalty.
The federal government sets the rate and collects gas development surcharge and excise duty which is distributed among provinces, however, interestingly; the provincial governments have no say in the policy.
Furthermore, the government has initiated mega projects, like, the Gwadar Sea Port in the Makran division, without approval of the local population. It is being complained that the Balochis have neither been employed nor implemented or planned the project and that government officials and army generals have been granted lands at throw away prices. The tip on the iceberg is the massive deployment of army in Balochistan and government?Ts plan to establish more cantonments which has created further hostility and has resulted in blowing up gas lines by the Baloch guerilla fighters. The striking question is why cantonments are needed when there is no apparent threat of external aggression; hence it appears that the new cantonments are meant to protect Sui gas and the Gwadar Port project only.
It seems that inability of the federal government to adhere to and implement the Constitution in its true spirit has created mistrust between the centre and Balochistan. Today the Balochi has become a freedom fighter, just like the Bengali. The sense of deprivation of the Balochi has surpassed his nationalist pride since the federation has been unreasonable, illogical and violated the Constitutional dictate.
To mend fences, bitter pills must now be swallowed and the federal government must, ipso facto, resolve all outstanding issues with Balochistan starting from:
1. Working out a uniform, non-discriminatory, gas royalty formula and rate for all provinces
2. Implementation of the Constitution provisions in relation to centre and provinces, with the object to grant provincial autonomy up to the limit to which the federal government can concede
3. The restructuring of laws regarding role of armed forces in Balochistan
4. The announcement of the NFC Award
5. The implementation of the resolutions passed by the provincial assembly
6. Immediate withdrawal of armed forces from Sui
7. Free and fair trial in the rape case
8. Restoring the right of provincial government to legislate, inter alia, on local government laws
9. Balochis must be given the administration and control of the mega projects
10. Jobs must be given to Balochis under the constitutional quota for Balochistan which has not been fulfilled since 55 years
11. Concurrent Legislative List be deleted and provinces be allowed to legislate freely-since the 10 year limitation under the 1973 Constitution had expired long ago.
It could be said that, prima facie, unnecessary, great, injustice has been done to the people of Balochistan, which has lead the country to a civil war like situation. However, the federal government may still set the house in order. The condition precedent would be to exercise restraint and let wisdom prevail.
Email: sqdoulah@yahoo.com
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