18th Amendment: Shift Of Power From Center Or Mirage For Provincial Autonomy?

Is 18^th Amendment A Manifestation Of Shift Of Power From Center To Provinces Or Just A Mirage For Those Who Yearn Provincial Autonomy?

2010 marked structural reform of the Pakistani state as the year saw the dawn of provincial autonomy via the 18^th Constitutional Amendment. The Amendment was aimed at addressing the challenges hampering democratic sustainability in Pakistan. It redefined the structural contours of the state with a paradigm shift from heavily centralized to a decentralized federation. Pursuant to the 18^th Amendment, many legislative matters devolved to provinces but 18 items were kept in Part II of the Federal Legislative List under the supervision of the Council of Common Interests.

Purpose of Empowering Council of Common Interests

The purpose of giving these matters to the Council of Common Interests was to take these matters out of the domain of the federal government and give it to the Council so that the role of federal government in these matters becomes marginalized and the voice of provinces could be heard. The Council of Common Interests has complete autonomy in choosing the subject matter of its meetings.

The significance of assigning this power to CCI can be seen in the decision of the court wherein it is guaranteed that decision of the CCI can never be ignored or curtailed. In 2014 PLD 83: Master Textile Mills versus Federation of Pakistan, the court ruled that while formulating and regulating a policy in relation to the matters enumerated in Part II of the Federal Legislative List, the role of CCI could not be ignored, curtailed or minimized in any manner whatsoever because it was the policy which would eventually be transformed into law. Hence, any attempt at bypassing such an important constitutional body would simply mean making provisions of the constitution ineffective. Ignoring the Council would be tantamount to making it dysfunctional. It will also mean that the fundamental rights of the people belonging to different federating units have been usurped and their right to be treated in accordance with the law has been defeated. CCI works in the interest of both the federation and the provinces as reflected by its composition i.e. the Prime Minister, Chief Ministers of provinces and three members of the federation. Representation of both the center and provinces in the Council of Common Interests ensures that matters pertaining to the state are dealt with effectively and the unity of the federation is kept intact[1].

The Dependency of Council of Common Interests on Parliament

The Council of Common Interests itself is responsible to the Parliament. According to Article 153(4) of the Constitution of Pakistan, the Council shall be responsible to Parliament and shall submit an annual report. Similarly, in Article 154(6) the Parliament in joint sitting may from time to time by resolution issue directions through the federal government to the Council, generally or in particular, to take action as it may deem just and proper, and such directions shall be binding on the Council. Article 153, therefore, envisages parliamentary oversight and control over the Council and use of the word shall in the Article 153 makes it mandatory for the Council to obey instructions of Parliament. It is also pertinent to mention here that the power of the Council is restricted to the formation of policy or coming up with guidelines, while codification of the said policy in terms of law vests with the Parliament. Parliament, thus, continues to reign supreme over Council. Parliament has under Article 70 powers to legislate on matters in the Federal Legislative List, covering both Parts I and II.

Apart from foregoing, Parliament can also legislate on subjects of Part II of the Federal Legislative List directly subject to certain conditions which are enumerated below:

• Provincial legislation on the subjects mentioned in the legislative lists which is inconsistent with prior federal law.
• If in furtherance of federal law on ancillary matters, some legislation is required to be done.
• For the implementation of some international treaty in any province.

Parimateria Provisions From Other Constitutions

1. Provincial legislature inconsistent with federal legislature:

• In 2012 CLD 846, it was held that a competent federal legislature prevails over conflicting provincial law.

• Parimateria provision in Government of India Act 1935, Section 107(a) provides that if any provision of a provincial law is repugnant to any provision of a federal law which the federal legislature is competent to enact then the provincial laws shall be void[2].

• Parimateria provision in the Constitution of Malaysia can also be found in Article 75 which provides that if any state law is inconsistent with a federal law, the federal law shall prevail and state law shall be void.

2. In furtherance of any federal law for ancillary matters:

• At times the federal legislature in the exercise of its law-making powers may make another law on a different subject matter to carry out the provisions of the principal legislation. The subject matter for follow-up legislation is called an incidental or ancillary matter and the legislation is called ancillary legislation[3].
• In Cherat Cement Company Limited versus Federation of Pakistan; it was observed that Parliament has the power to legislate in respect of matter incident or ancillary to any matter enumerated in the list. The parliament can legislate with regard to the matters falling within the domain of provinces[4].

• Similar view prevails in Canada where in the case Grand Trunk Railway Company of Canada versus Attorney General of Canada it was observed that where the federal government has made a law within its jurisdiction, it has the power to make further legislation in respect to  a subject within its jurisdiction, it has power to make further legislation in respect of other subjects in furtherance of the objects and aims of the principal law even if the incidental legislation cuts into matters or areas exclusively within the jurisdiction of states[5].

• Australian High Court in The Australian Communist Party versus the Commonwealth held that the subject matter for the ancillary legislation must be directly related to the main subject of the principal law[6].

3. For imposing international conventions:

• Parliament can make legislation on the subject of Part II of the Federal Legislative List to the extent of provinces if it has signed an international treaty or convention and for implementation of that treaty. It is mandatory to make legislation to the extent of provinces as well.
• It was observed in Cherat Cement Company Limited versus Federation of Pakistan that where 153 countries including Pakistan signed the World Trade Organization charter and have been required to conform to international standards, the Pakistani Parliament can legislate with regard to matters falling within the domain of provinces[7].
• A similar concept is also recognized in India, that for the implementation of international treaties, Parliament can pass laws to the extent of provinces, for example on micro-irrigation, the treaty on agriculture, etc.[8]

Foregoing references and reflections clearly provide that the Council of Common Interests is not entirely independent but accountable and to a certain extent dependent upon the Parliament which reigns supreme even today. It is quite clear that the final word on a matter of policy rests with Parliament regardless of the (illusory) autonomy that the 18^th Amendment poses to confer on the provinces which continue to yearn for provincial autonomy.

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References

[1]2014 PLD 83 Islamabad master textile mills v. Federation of Pakistan
[2]Government of India Act 1935 section 107(a)
[3]http://tnaidike.wordpress.com
[4]2010 CLD 226
[5][1907] AC 65, 68
[6][1951] HCA 5
[7]2010 CLD 226
[8]http://quora.com

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which she might be associated.