The COVID-19 virus spreading globally like wildfire is undoubtedly the greatest challenge being faced worldwide post World War II. Unfortunately, it is not merely a health crisis, it will inevitably impact the society, industries and the economy as we know them. The socioeconomic threat that the virus poses has already begun to show early-stage signs of impact. Analysts all over the world believe that the economy will take a major hit, the recovery from which will require wholesome economic restructuring.
Pakistan, only recently having risen from the level of a third world country to a developing one, is, perhaps, in one of the most precarious positions after the so-called “Islamist” extremists and terrorists have tarnished the reputation of our beloved nation.
In a desperate attempt to maintain its economic standing, ensure the livelihood of daily wagers and provide basic necessities to every household, the federal government has decided to ease the lockdown it had imposed to somewhat ‘flatten the curve’ of the skyrocketing numbers of those infected with coronavirus. The action plan is to ease the lockdown in stages so as to not step on the standard operating procedures (SOPs) established for social distancing.
However, it is apparent that the ruling party is facing hurdles in doing so, since it is only in Khyber Pakhtunkhwa that it has a complete majority and has had to form a coalition government at the federal level to be in power. While the federal government has decided to agree with Punjab, Khyber Pakhtunkhwa and Balochistan governments to ease the lockdown, it has often locked heads with the Sindh government while trying to resolve matters amicably. The federal government argues that it has repeatedly been impeded from forming a strategy to fight the virus because of the lack of unity and trust shown by provincial governments. The federal government claims to have been restricted solely to the issuance of policy guidelines, which the provinces have had the choice to adopt or merely refer to.
Therefore, the fear of the Eighteenth Amendment to the Constitution of the Islamic Republic of Pakistan, 1973 being revoked or repealed by the federal government is very real. To be able to truly comprehend the hazard that such a revocation presents, one needs to understand why and how its withdrawal will leave the provinces vulnerable.
The Eighteenth Amendment provides a legal framework that enables democratic devolution to the provinces and, consequently, democratic rights to the people of Pakistan. Article 140A of the Constitution prescribes the establishment of local governments upon the devolution of political, administrative and financial responsibility and authority to the elected representatives of local governments, therefore, giving provincial governments greater autonomy under the Constitution.
Abolition of the Concurrent Legislative List
By virtue of the Eighteenth Amendment, the Concurrent Legislative List, containing matters upon which both the Parliament and Provincial Assemblies could legislate stands abolished. As of now, 17 ministries pertaining to matters such as education, food, agriculture and health, stand devolved from the federal government to the provinces, allowing the provinces to formulate policies and projects in these spheres within their purview.
In addition to the above, laws pertaining to bankruptcy, contracts, labour, firearms possession, marriage, educational curriculum, environmental pollution and 40 other diverse fields of law are now also exclusively to be legislated upon by the provinces, that is, each Provincial Assembly is obligated to promulgate its own legislation on the aforementioned subjects.
The omission of the Concurrent List has granted the Provincial Assemblies with exclusive powers to enact laws with respect to any matter that does not appear on the Federal Legislative List. As a consequence, numerous subjects and activities previously being handled by the ministries of the federal government are now being administered exclusively by the provincial governments.
The Federal Legislative List and Changes Thereto
The Federal Legislative List remains intact, subject to a few additions and deletions. As per Article 142(a), the Parliament alone is to have exclusive power to make laws concerning any matter in the Federal Legislative List. All other legislative subjects fall in the residual category, i.e. within the exclusive legislative domain of the provinces.
The Federal Legislative List itself consists of two parts, namely, Part I and Part II. Pursuant to Part I of the Federal List, the Parliament alone has the competence to legislate on any offences in relation to the 53 items therein. Part II of the List enumerates the areas falling within Parliament’s competence, however, under Article 154, the Council of Common Interests (CCI) is required to formulate and regulate policy on these matters.
The CCI is a body comprising the Prime Minister, the Chief Ministers of provinces and three members of the federal government. This translates into some level of provinces having a say in matters listed in Part II of the Federal List. Therefore, matters in Part II of the Federal Legislative List can be legislated upon by the provinces through their Chief Ministers sitting in the Council of Common Interests.
The powers devolved to the provinces are such that if the federal legislature intends to legislate on a matter out if its purview, it would require a province to pass a resolution giving consent under Article 144 of the Constitution, thereby allowing the National Assembly to regulate a matter not covered by the Federal Legislative List and provide for matters contained therewith or incidental thereto. Even then the provinces retain the right to amend the law drafted by the federal legislature, which leaves little doubt as to whether the federal legislature has any executive authority over such matters.
All this and more has been granted to the provinces by the Eighteenth Amendment, therefore, all of this can be reversed as well. The autonomy of the provinces can be revoked and presidential powers can be restored. The abrogation and suspension of the Constitution can once again be given a pass. Fundamental rights, which the state has sworn to protect, can likewise be snatched from the citizens of Pakistan. These fundamental rights are inclusive of the right to fair trial, right to information and right to education. All laws passed subsequent to the addition of the aforementioned rights by the Eighteenth Amendment can then also be challenged.
With all of the above at stake, the citizens of Pakistan rely heavily on the elected representatives of their respective constituencies to protest and prevent any repeal and revocation of this significant Amendment.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which she might be associated.