Legislative Powers Of Federation Of Pakistan And Provinces Thereof And Some Obscurities

It is irony of fate that after the abolition of the Concurrent Legislative list contained in the Fourth Schedule to the Constitution of the Islamic Republic of Pakistan, 1973 the divisions of the Federal Government mentioned in the Rules of Business, 1973 have, instead of decreasing in number, vertically increased. The Rules of Business, 1973 had been framed under Articles 90 and 99 of the Constitution.  The incumbents of the erstwhile divisions for their sustainability must have painted a picture of indispensability. The Eighteenth Constitutional amendment inserted through Act No. X of 2010 was a major breakthrough and the constitutional balance tilted from an even keel towards provincial autonomy. Needless to say that provinces had been demanding autonomy over years at a low rhythm. Before the introduction of the Eighteenth amendment there was a Federal Legislative List (Part I and Part II) followed by a concurrent Legislative list. Vide the Eighteenth amendment some items like Electricity, Boilers, Legal,Medical and other professions etc were picked up from the Concurrent Legislative List and inserted into the Federal Legislative List (FLL) and rest of the Concurrent Legislative List (from items 1 to 47) was abolished. Apart from this, Part I and Part II of the FLL were a bit reshuffled apparently with a view to assemble the subjects of Common Interest amongst the provinces in Part II. Further Article 142 of the Constitution was rewordedto the following effect.

“Subject to the Constitution-

• [Majlis-e-Shoora (Parliament) ]shall have exclusive power to make laws with respect to any matter in the Federal Legislative List;

(b) Majlis-e-Shoora (Parliament) and a Provincial Assembly shall have power to make laws with respect to criminal law, criminal procedure and evidence;

(c) Subject to Paragraph (b), a Provincial Assembly shall, and Majlis-e-Shoora (Parliament) shall not, have power to make laws with respect to any matter not to enumerated in the Federal Legislative List;

(d)Majlis-e-Shoora (Parliament) shall have exclusive power to make laws with respect to all matters pertaining to such areas in the Federation as are not included in any Province”.[1]

Article 142 (b) as such provides three concurrent subjects. Under item 58 of FLL (Part I) the Majlis-e-Shoora (Parliament) can make laws in respect of matters assigned to Federation in the Constitution. For example under newly added paragraph 3 of Article 172 the mineral oil and the natural gas reserves are shared by the Federation and the respective province jointly and equally. Articles 157 and 161 also provide a joint jurisdiction to Federation and provinces.  An item “All regulatory authorities established under a Federal Law” has been inserted at Serial No 6 of Part II of FLL. Pakistan Electronic Media Regulatory Authority (PEMRA), National Electric Power Regulatory Authority (NEPRA), Oil and Gas Regulatory Authority (OGRA) etc are such type of legislations. The Federal Government can issue only policy guidelines but is always found very keen to control them. The purpose of creation of such authorities is day by day being rendered nugatory. Further as aforesaid the provinces share oil and gas jointly and the provinces can generate electricity. Their authority may not get undermined.

Under Article 97 of the Constitution the executive authority of the Federation extends to the matters mentioned in the FLL and in the Proviso to this Article the authority subject to any law made by the Majlis-e-Shoora (Parliament) may extend to a matter with respect to which the provincial assembly has also power to make laws.[2]Under Article 137 of the Constitution “the executive authority of the province shall extend to the matters with respect to which the Provincial Assembly has power to make laws”. By a similar rider given in the proviso an edge has been given to Majlis-e-Shoora (Parliament) as mentioned in Article 97.

Under amended Article 90(I) of the Constitution “the executive authority of the Federation shall be exercised in the name of the President by the Federal Government consisting of the Prime Minister and the Federal Ministers which shall act through the Prime Minister who shall be the Chief Executive of the Federation”.  In the corresponding Article 129(I) the word Chief Minister is not followed by the words “who shall be the chief executive of the province”. So it is an obscurity.

Items No 1 and 2 of  the erstwhile Concurrent List regarding criminal law and criminal procedure have now been carried to Article 142, however, item No 14 of the Concurrent List being “preventive detention for reasons connected with the maintenance of public order” travelled to Provinces sequent to the abolition of Concurrent List. The extent of authority is something else and the Responsibility quite another. In the wake of deteriorating situation of the law and order in the country it cannot be conveniently or properly ascertained from a cumulative reading of Article 142 and the Fourth Schedule as to whose responsibility is the Law and Order. This is anotherobscurity.

Public debt of the Federation is mentioned at serial no 10 of the FLL (Part I) but is again mentioned at serial no 8 of FLL (Part II) as “Supervision and Management of Public Debt”. It too is confusing.

The division of FLL in part I and part II also gives rise to a question mark.The previous Articles 70 and 71 of the Constitution delineated as to in which House a bill is to be introduced. Earlier Article 70 dealt with Part 1 and Article 71 dealt with part II of FLL but after amendment in 1985 and then in 2010 all bills (except money bills) may originate in any house. As such the Parts have lost their significance. Further the Council of Common Interest (CCI) under Article 154 “shall formulate and regulate policies in relation to matters in Part II of the Federal Legislative List”  but in the same Article the Federal Government can issue directions to CCI and in case of dissatisfaction of the Federal or Provincial Government the decision of Majlis-e-Shoora (Parliament) shall be final. So in this perspective also the bifurcation of FLL in Part I and Part II is not much meaningful.

The Legal, Medical and other professions were carried from the Concurrent List and assigned to FLL. There is no law to check the mushroom growth of Law or Medical Colleges. Similarly there is no law to determine the jurisdiction of Universities to establish their campuses. From their respective charters the territorial jurisdictions of the universities cannot be ascertained.

The touchstone or the rubric to determine the extent of legislature or executive authority is provided in Article 142 and schedule IV (FLL) of the Constitution and the Rules of Business, 1973 are and must be subservient to the Constitution. The provisions of the Constitution must be adhered to in letter and spirit and the aforesaid ambiguities need to be allayed legislatively at the earliest.

[1] Article 142 of the Constitution of Islamic Republic of Pakistan, 1973.

[2] Article 97 read with Article 142(a) and Federal Legislative list (Schedule IV) of the Constitution of Islamic Republic of Pakistan

This article has been co- authored by Mr. Jawad Riaz and Mr. Zaheer Cheema. Both the authors are Assistant Professors at University Law College, University of the Punjab and hold expertise in Constitutional Law.