27
constitution.
82
In federalism, the powers and functions
of the government are
divided by a constitution between the central government and its federating units.
83
Sovereignty in a federal system is surrendered by the federating units to form a
common sovereignty which can then be shared by them equally.
84
An important
feature that differentiates federalism from other arrangements is the preservation
of the identity of people and the autonomy of the federating units. Livingstone notes
that a federal government is a form of political and constitutional organisation that
unites into a single polity a number of diversified groups or components of politics,
so that the personality and individuality of the components are legally preserved,
while created, in the new totality, as separate and distinct political constitutional
units.
85
Several semi-autonomous federating units were united for a common purpose, i.e.
to acquire independence from British colonial rule.
86
The circumstances behind
forming the federations of the USA and of Pakistan are set out in detail in Chapter
4. In this section therefore, it is important to explore the philosophical reasoning
behind the concept of federalism. It is argued that there are certain implied
conditions that have to be met before forming a federation, the most important of
which is the willingness to form a community. This spirit of community, as Dicey
puts it, could be produced when these federating units have points of commonality
amongst them.
87
Alongside such commonality, the federal system must be designed
in a way that the forming units can retain their individual
regional identity and
exercise some autonomy to shield the union from becoming a unitary state.
According to Dicey, a federation is:
'a body of countries so closely connected by history, by race, or the
like, as to be capable of bearing in the eyes of their inhabitants an
impression of common nationality, a very peculiar state of sentiments
82
Carl J Friedrich, 'Constitutional Government and Democracy: Theory and Practice in Europe and
America' (1941) World Constitutions Illustrated 187.
83
Roger Hilsman,
To Govern America (Harry & Row 1979) 52.
84
James Q Wilson Jr et al, 'The American System' in
American Government: Institutions and Policies
(Wadsworth 2013) 58
85
William S Livingston, 'A Note on the Nature of Federalism' (1952) 67(1) Political Science Quarterly
81, 83.
86
For example, the USA, India and Pakistan.
87
Albert V. Dicey,
Introduction to the Study of the Law of the Constitution (Roger E. Michener ed, 6th
edn, Macmillan & Co 2005) 144.
28
among the inhabitants of countries which it purposes to unite. They
must desire union and must not desire unity'.
88
In situations where there are wide differences among the individuals in terms of, for
example, their political identity, culture, religion, or language, the unitary system
becomes less effective.
According to Ebenstein, federalism is the best option for
states with large territories and cultural diversities.
89
It is reasonable to assume
therefore that a federal arrangement is the best possible model for a newly forming
country (with diverse federating units) to adopt, especially in situations where a
unitary system cannot be embraced.
In the case of Pakistan, there are five completely different ethnicities who all have
completely
different traditions, habitat, culture and language.
90
The issue of
disparity in Pakistan remains unaddressed and present in its political. Pakistan has
always been a polity of multiple geographic, economic and demographic variations.
Khalid
observes attributes such as multiple geographic, economic and demographic
variations in Pakistan.
91
Khalid rightly suggests that such attributes require special
governance, for which her solution is a federal system.
92
She observes that
federalism is a delicate compromise between unity and autonomy that requires
political maturity.
93
She proposes equal representation of federating units in a
federation where they surrender only a partial sovereignty and keep control of their
local affairs.
94
She claims that in the absence of equal representation, a successful
federation
can never operate, and maintains her argument by referring to the
dominance of Prussia in the downfall of the German Empire and relating it to the
secession of East Pakistan in 1971.
95
Khalid may, however, have weakened her position by relying on Dicey's view since
he supported parliamentary sovereignty,
96
which is to be contrasted with the
doctrine of separation of powers, one of the factors in a democratic federal state.
88
Albert V. Dicey,
Introduction to the Study of the Law of the Constitution (Roger E. Michener ed, 6th
edn, Macmillan & Co 2005) 101.
89
William Ebenstein et al,
American Democracy in World Perspective (Harper & Row 1970) 60.
90
From the researcher's personal knowledge: Pashtuns, Baloch, Sindhis, Bengalis and Punjabis.
91
Iram Khalid, 'Politics of Federalism in Pakistan: Problems and Prospects' (2013) 28(1) A
Research
Journal of South Asian Studies 199 199
92
ibid.
93
ibid.
94
ibid 200.
95
ibid.
96
Parliamentary sovereignty, parliamentary supremacy or legislative supremacy is a concept that the
legislature has absolute sovereignty over all other institutions (executive or judiciary).
29
Nevertheless, her notion of Pakistan (being a federation) operating as a unitary
system leads the researcher to deduce that Pakistan in principle fulfils the factors
of democratic federalism in its structure but is operating a political system that is
not a suitable one. Khalid rightly observes, therefore, that
political instability in
Pakistan is the result of a discrepancy between the theory and practice of the federal
arrangements in the political system.
97
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