Post 18th Amendment Federalism: “Pith and Substance” Doctrine and Cooperative Federalism

Adeel Wahid

A. Introduction

The aim of this paper is to explore the “pith and substance” doctrine, and notions of Cooperative Federalism (also known as Marble Cake Federalism), as espoused by the courts in Pakistan, particularly after the passage of the Constitution (Eighteenth Amendment) Act, 2010 (“18^th Amendment”). The paper further discusses the fault lines running through the doctrinal tools, such as the “pith and substance” doctrine and Cooperative Federalism, and whether there may be a conflict, or, at least, some tension between these two concepts.

The “pith and substance” doctrine is deeply ensconced in our constitutional jurisprudence, inherited by the constitutional courts in Pakistan since at least partition of the subcontinent. Under the “pith and substance” theory, the entries in the legislative lists are scrutinized by the courts to determine as to which tier of Government, the Federal or Provincial, has the prerogative to legislate with regards to particular subject areas. The nature of controversy often lies where more than one entry seem to cover a particular subject matter, and it becomes imperative to determine, which legislature can rightfully claim the power to legislate with respect to that subject area.

Relatedly, under the same doctrine, it is determined as to which governmental entities fall within the ambit of the Federal Government, as opposed to the Provincial Government. Importantly, under the “pith and substance” theory, once it has been determined that the legislative competence lies with one tier of Government, it necessarily follows that the other tier of Government is precluded from legislating on that subject, or establishing a domain over entities dealing with that subject area.

This theory has been explained in some detail by looking at four judgments authored by Justice Munib Akhtar, who, after the passage of the 18^th Amendment has applied the “pith and substance” doctrine to some unique situations during his time at the High Court of Sindh, Karachi. These cases include: (1) Pakistan International Freight of Forwarders Association and others v. Province of Sindh, 2017 PTD 1 (Sindh),[1] (2) Shafiquddin Moinee v. Federation of Pakistan, 2018 CLD 1088 (Sindh),[2] (3) Karamat Ali and others v. Federation of Pakistan, PLD 2018 Sindh 8,[3] (4) Dr. Nadeem Rizvi and 4 others v. Federation of Pakistan and others, PLD 2017 Sindh 347.[4]

In some contrast to this conventional understanding of Federalism is the notion of Cooperative Federalism. This notion has been most expressly introduced by Justice Mansoor Ali Shah, in his judgment in Punjab Higher Education Commission v. Dr. Aurangzeb Alamgir and others, PLD 2017 Lahore 489,[5] a constitutional interpretive tool that breaks through the rigidity of the “pith and substance” theory. Under Cooperative Federalism, at times, a clean break is not possible between the Federal and the Provincial tier, and both legislatures may be deemed to have competence to legislate with respect to a particular subject area. Cooperative Federalism is a theme also undergirding Justice Munib Akhtar’s Karamat Ali, not in the context of determining legislative competencies of the Federal and Provincial Governments, but, instead, in the context of appointment and removal of Inspector General (IG) of Police, Sindh.

Part B of the Paper draws heavily from International Freight, narrating, in some detail, the history of the legislative lists as Pakistan experimented with multiple different Constitutions and amendments therein, which sets up the backdrop against which to understand the Federalism issues arising out of the cases mentioned above (and discussed in much greater detail below). It is noteworthy that Federalism in Pakistan rests, primarily, on these legislative lists, since they tend to distribute the powers between the Center and the Provinces.

Part C of the Paper, discusses the theory of “pith and substance” and attempts to understand its application in four different cases, in some detail, all of which have been authored by the same justice, Justice Munib Akhtar, during his stint at the High Court of Sindh, Karachi. In the process, the various analytical hurdles that Justice Munib Akhtar overcomes have also been referred to.

Part D of the Paper refers to Justice Mansoor Ali Shah’s Aurangzeb Alamgir, and the invocation of Cooperative Federalism and its practical significance in dealing with governance issues. This part further discusses the notion of Cooperative Federalism as Justice Munib Akhtar, perhaps, understands and applies it in Karamat Ali.

Part E concludes with the assertion that the introduction of constitutional interpretive tools such as Cooperative Federalism may have practical advantages in improving governance, even if some of the conceptual clarity that comes with the “pith and substance” doctrine – as with all bright line rules – is lost. Cooperation necessarily entails a give and take, which is of fundamental importance in any democracy.

B. The Ebb and Flow in the Legislative Lists

Federalism in Pakistan is primarily governed by the legislative lists. In essence, the relationship between the Center and the Provinces is controlled by the number of lists, and the interpretation of the entries therein. The lists, meanwhile, have ebbed and flowed.

The story of our Federalism, has been narrated in some length in International Freight, also reproduced in other judgments, with the beginning of the relationship between the Centre and the Federating Units mapped down to the Government of India Act, 1935 (“1935 Act”).[6] In devising as to which subject areas were to be granted to the Centre and which to the Federating Units, for the purposes of legislation, Imperial Parliament drew upon the experience of, primarily, the Dominions of Canada, particularly in reference to the British North America Act, 1867 (“1867 British Act”).[7] Two lists existed: first in section 91 of the 1867 British Act, listing down the items in which Canadian Parliament had the competence to legislate, and second in section 92 which listed the items in which the Provinces could legislate.[8] And the Federal Court set up under the 1935 Act and later the Supreme Courts of Pakistan eventually embraced the principles laid out by the Judicial Committee of the Privy Council interpreting the lists in the in the 1867 British Act.[9] As a result, doctrinally, there is not much that is new in Pakistan’s experience of interpreting legislative lists.

With this backdrop, the 1935 Act started off with three legislative lists contained in its Seventh Schedule; first for the Federation, the second for the Federating Units, and the third for both.[10] Section 104 of the 1935 Act, meanwhile, provided that a matter not listed in any list was to be allocated by the Governor-General to either the Federation or the Provinces. This framework was carried forward in the Constitution of the Islamic Republic of Pakistan, 1956 (“1956 Constitution”), where in the Fifth Schedule, there were, again, three lists.[11] In contrast to the 1935 Act, Article 109 of the 1956 Constitution conclusively resolved the question of the non-listed items in favor of the Provinces. In other words, what had not been listed remained the prerogative of the Provinces to govern.

Then came the Constitution of the Republic of Pakistan, 1962 (“1962 Constitution”), with the legislative lists pruned down to only one. In its Third Schedule, the 1962 Constitution listed only the items on which the Central Government could legislate. Article 132 of the 1962 Constitution gave the powers not listed in the Third Schedule to the Provinces. Except that Article 131(2) of the 1962 Constitution opened up expansive domain for the Central Legislature, providing that the Central Legislature could legislate “[w]here the national interest of Pakistan in relation to – (a) the security of Pakistan, including the economic and financial stability of Pakistan, (b) planning or co-ordination; or (c) the achievement of uniformity in respect of any matter in different parts of Pakistan”. This language kicked the door wide open for the Central Government to legislate.

In 1972, after a long hiatus of dictatorial rule and the tumultuous break away of Bangladesh, there was an Interim Constitution of Islamic Republic of Pakistan (“Interim Constitution”) put in place. In its Fourth Schedule, the Interim Constitution reverted back to the three lists, based on the framework contained in the 1935 Act, again providing for a legislative list each for the Centre and Provinces, and, separately, one for both. The powers not mentioned in any of the lists, could be allocated to the Provinces or the Centre by the President under Article 141 of the Interim Constitution. This was in keeping with the 1935 Act, where the Governor-General had this power as to the residual items not specified in the lists.

Subsequently, Pakistan settled for two lists. The Constitution of the Islamic Republic of Pakistan, 1973 (“1973 Constitution”) – still in existence today despite multiple amendments – provided for two lists: one for the Center, and the other the Concurrent List, for Centre and Provinces, both. Under Article 142 of the 1973 Constitution, the subject matters not listed in the Federal or the Concurrent Lists fell in the domain of the Provinces.

With the passage of the 18^th Amendment, the two lists became one, again. It has been quite a journey for the lists, with three in 1935 Act, and three in 1956 Act, plummeting to one in 1962, and eventually settling for two in 1973, even when the interim 1972 Constitution had three. From 2010 onwards, though, we are in phase in our constitutional history where there is only one list, only enumerating competence for the Center.

After the 18^th Amendment, the 1973 Constitution only provides for entries in which the Federal Legislature could legislate, and everything else, a large expanse, to be dealt with by the Provinces under Article 142(c). This is the reason why Justice Munib Akhtar has cautioned against the use of the word “residual”; a hangover, he says, from previous constitutional experiments, since “residual” does not do justice to the expansiveness of the powers now enjoyed by the Provinces.[12] In the 18^th Amendment, some of the items from the Concurrent List moved to the Federal Legislative Lists, but “[m]ost, however, were omitted”.[13]

Article 270AA(8) of the 1973 Constitution provided that once the Concurrent List had been omitted, “the process of devolution of the matters mentioned in the said List to the Provinces shall be completed” by the 30 June 2011 – the enactment date of 18^th Amendment being 19 October 2010. And for such purposes, the Federal Government was required to constitute an Implementation Commission under Article 270AA(9). The executive institutions and machinery developed around the items in the now removed Concurrent List, in which the Federal Legislation had taken place and Federal Institutions had been set up, were to be devolved down to the Provinces, courtesy 18^th Amendment.

There are two parts to this Legislative List, now contained in the 1973 Constitution, after the 18^th Amendment: Part I and Part II. With respect to Part II, a distinct body, a Council of Common Interest – comprising of the Prime Minister, the Chief Ministers and three other members of the Federal Government, to be appointed by the Prime Minister – has been designated a role in the 1973 Constitution. Under Article 154(1) of the 1973 Constitution, this Council has been required “to formulate and regulate policies in relation to matters in Part II of the Federal Legislative List and shall exercise supervision and control over related institutions”. Under Article 154(6), the Parliament “in joint sitting” has been authorized to “issue directions through the Federal Government to the Council”, in the form of resolution, which “shall be binding on the Council”. Therefore, there is an expectation that with respect to subject areas listed in Federal Legislative List Part II, there has to be oversight by a body, representing the interests of the Provinces. This consideration was of some relevance in the Court’s analysis in Aurangzeb Alamgir, infra.

C. The Pith & Substance Doctrine or the “Field” Test

With the removal of the Concurrent List, post 18^th Amendment, there are two sets of related issues that the constitutional courts, primarily, have had to engage with. First, the courts wrestled with the “pith and substance” doctrine or the legislative “field” test, to determine as to which legislature, the Provincial or the Federal, can lay a claim to an already existing legislation. Second and relatedly, under the amended Constitution, the Courts have had to determine at which tier of the Government the power now lies for enacting legislation on a particular subject matter, after the Concurrent List has been dispensed with.

The “pith and substance” test, or the legislative “field” test is already deeply embedded in constitutional jurisprudence of Pakistan having been imported from Canadian federalism conceptions. As already presented above, the 1867 British Act had two lists in section 91 and 92, laying out the legislative domain of the Federation and the Provinces, respectively. And in dealing with the issues of which matter fell under the domain of which tier of government, the Privy Council had developed the doctrine of “pith and substance”.[14] The idea behind this doctrine has been that minor, peripheral encroachment of other legislative items was tolerable, as long as a determination is reached that in “pith and substance” a particular subject matter fell within the domain of one of the tiers of Government. Meanwhile, each of the listed items was to be considered as a “field”, which “had to be interpreted and applied not narrowly and pedantically but liberally and in the widest sense possible”.[15]

The application of the “pith and substance” test is not always a straight-forward exercise. The “field” created by each legislative item list is not some easily identifiable, non-overlapping, concrete box. A particular legislation, for instance, may potentially be able to check off multiple items in the lists, both in the currently existing Federal Legislative Lists and the now removed Concurrent List. This, then, leads to nuanced issues as the court determines, through its “pith and substance” test whether, for instance, the Provinces could amend, or otherwise repeal an already existing Federal Legislation.

(i) Existing Federal Legislation on a Subject-Area Devolved to Provinces after the 18^th Amendment

International Freight and Shafiquddin Moinee are cases which are similar in nature because both involved already existing Federal Legislations in areas which after the 18^th Amendment were said to have been devolved to the Provinces. After the “pith and substance” exercise conducted by the court, it was held in both these cases that only the Provincial Legislation could survive.

(a) International Freight and Excise Duties

In International Freight, the High Court of Sindh, had to adjudicate whether, after the passage of the 18^th Amendment, it was the prerogative of the Provincial or the Federal Legislature to impose fiscal levy – either a tax or a duty – on the provision of services. The Court held that it was the Provincial Legislature’s prerogative, thereby upholding the Sindh Sales Tax Act, 2011 (“2011 Sindh Act”), and, thus striking down the Federal Excise Act, 2005 (“2005 Federal Act”).

The Court first analyzed whether the taxing event under the 2005 Federal Act and the 2011 Sindh Act was the same. Broadly speaking, the Court held that the taxing event in both these legislations was, in fact, the same, which was the rendering or provision of services.[16] The Court held that if the taxing event is the same, which it is, then one of the two legislative promulgations had to give way to the other, since “[i]f the taxing event is the same, that can only mean that the taxing power is the same”.[17] This is due to two related principles. One, it is “the taxing power (and its associated entry, if any) that controls the taxing event as set out in sub-constitutional legislation”, which exists autonomously in one tier of government only.[18] And two, in Pakistan, it is an established constitutional principle that “there is no concurrent taxing power”.[19] That is, the Provinces cannot tax an event already taxed by the Federation, and vice versa.[20] There has to be an absolute and clean break, at least, when it comes to the taxing power: while taxing power can be “divided”, it cannot be “shared”.[21]

Having established that either the Provincial or the Federal Legislation, but not both, could impose tax on services rendered and provided, that could exist, the High Court of Sindh had to resort to the “pith and substance” test to determine which tier of Government actually did have the power to impose the tax. The analysis begins with the already existing legislation at the time of partition, namely, Central Excises and Salt Act, 1944 (“1944 Excise Act”). Under the 1956 Constitution, the “pith and substance” of the 1944 Excise Act was said to fall under Entry No. 26 of the Federal Legislative List, which in relevant parts stated: “duties of excise (including duties on salt, but excluding alcoholic liquor, opium and other narcotics)”. Under the 1962 Constitution, the relevant entry in the Third Schedule was Entry No. 43, that said: “Duties and taxes … (b) duties (including duties on salt, but no including duties on alcoholic, liquor, opium and other narcotics) …”. The 1944 Excise Act, meanwhile, had withstood an attack on its constitutionality in the case called Hirjina[22], where the Court had held that the Central Legislature was, in fact, competent under the 1962 Constitution to promulgate the 1944 Excise Act. Finally, with the 1973 Constitution, Entry No. 44 allowed the 1944 Excise Act to continue existing as a Federal Legislation which, similarly, stated: “Duties of excise, including duties on salt, but not on duties on alcoholic liquors, opium and other narcotics”. Until this point, therefore, the Court concluded, the “Federation alone … had the sole legislative competence to impose a levy on the rendering and providing of services”.[23]

But then in the year 2000, through the Sindh Sales Tax Ordinance, 2000 (“2000 Sindh Ordinance”), the Provinces of Sindh began to levy tax on services.[24] Because the Court had already held that the Federal Legislature had the requisite competence over taxing services, it then followed that the 2000 Sindh Ordinance was, in essence, ultra-vires the Constitution.[25] This is despite the fact that the constitutionality of the 2000 Sindh Ordinance had previously been upheld a number of times, including by a division bench of the High Court of Sindh in Defence Authority Club, Karachi and others v. Federation of Pakistan and others, 2007 PTD 398. But the High Court of Sindh in International Freight sidestepped a binding decision by noting that in Defence Authority Club, the Court had completely failed to consider the Supreme Court decision in Hirjina, and, as a result, had an “erroneous understanding and application of a Supreme Court judgment”, thereby not warranting any deference.[26]

With a dismissal of the 2000 Sindh Ordinance, the Court proceeded to determine the fate of 2011 Sindh Act in light of the 18^th Amendment. After the 18^th Amendment, Entry No. 49 was amended to include the words underlined: “Taxes on the sales and purchase of goods, imported, exported, produced, manufactured or consumed, except sales tax on services”.

Importantly, Justice Munib Akhtar, acknowledged that prior to the 18^th Amendment, Entry No. 49 did not even deal with tax on services.[27] And that, on one tempting reading, the exception clause introduced in Entry No. 49 was not doing any real work since it was not clear as to what was being “excepted”.[28] However, the Court changes tact, and introduces the doctrine that redundancy cannot even be attributed to a statute, let alone the Constitution, which is the supreme law. The Court, then, imports a doctrine deployed in the context of interpreting provisos, and draws parallels between the “exception” clause in the Entry No. 49 and a proviso. Under this doctrine, at times, “a proviso is not to be regarded as a ‘true’ proviso but rather as an independent substantive provision on its own right”.[29] And hence, in this situation, the Court argued that the exception clause is not merely an “exception” but rather an “independent provision in its own right”.[30] From this, the Court then concludes that the introduction of the exception clause in the 18^th Amendment, which the Court asserts is an independent provision, has, in essence, “shifted” “the taxing power in relation to the taxing event of rendering or providing of services from the Federation to the Provinces”.[31] This, therefore, meant that Federal Government that had enjoyed the power to levy tax on services until the promulgation had ceased to have that power after the 18^th Amendment. Pursuant to 270AA of the 1973 Constitution, the Federal Government could continue collecting the tax until 2011 Sindh Act was promulgated on 01 July 2011, even when the 18^th Amendment, itself, had come into force on 19 October 2010.

In sum, the analysis of the Court ran thus: that the power to tax services previously lied with the Central Government, but then the 18^th Amendment changed the matrix by introducing the “exception clause” in Entry No. 49 of the 1973 Constitution. The “exception clause” was not merely an exception clause, but an independent clause in its own right, and because no redundancy can possibly be attributed to the Constitution, the exception clause created a new power in the Provinces to tax services, and at the time removing that power from the domain of the Federation. The 2011 Sindh Act was to survive, and not the 2005 Federal Act.

In other words, the “pith and substance” of legislations imposing taxes on services previously fell in Entry No. 44 of the Part I of the Federal Legislative List. After the 18^th Amendment, the “pith and substance” of such legislations got shifted to Entry No. 49 of the Part I of the Federal Legislative List, due to the inclusion of the exception clause, which in the words of Justice Munib Akhtar was not an exception clause, but an independent provision. Meanwhile, the independent provision affirmatively carved out jurisdiction for the Provinces.

(b) Shafiquddin Moinee and the Companies’ Profits

The analysis in Shafiquddin Moinee was not much different. In Shafiquddin Moinee, the High Court of Sindh had to determine whether the Companies Profits (Workers’ Participation) Act, 1968 (“1968 Federal Profits Act”), was to continue as an already existing federal legislation. Or, alternatively, whether to the extent of Sindh, the Sindh Companies Profits (Workers’ Participation) Act, 2015 (“2015 Sindh Profits Act”) governed, to the exclusion of any operation of the 1968 Federal Profits Act. Both these acts were similar in their language and operation, broadly requiring corporations to siphon off 5% of the companies’ profits, to be handed out to the companies’ workers. Depending on which of the two acts was to govern, the Central or the Provincial Government would be entitled to collect those profits for dispersals to the workers, and thereby, potentially, gaining the goodwill of the electorate. The Court held that for the purposes of the Province of Sindh, the 2015 Profits Act was the only legitimate law.

Before Justice Munib Akhtar, writing for the Court, could even reach a determination as to the effect of the 18^th Amendment on the fate of 1968 Federal Profits Act, he had to resolve a preliminary question of determining how the promulgation of the 1973 Constitution impacted the 1968 Federal Profits Act. This question, in turn, required a determination of the “pith and substance” of the 1968 Federal Profits Act. This federal legislation had been promulgated pursuant to the 1962 Constitution. At that point, as mentioned above, there was only one legislative list, the Third Schedule, laying out the entries pursuant to which the Central legislature could exercise its legislative powers. Apart from this list, the 1962 Constitution had, in the words of Justice Munib Akhtar, “certain features unique to it”.[32] Under Article 131(2) of the 1962 Constitution, the Federal Legislation was also competent in areas, not specified in the Third Schedule List, but which, nonetheless, dealt with national interest of Pakistan, including either (1) the security of the country, be it economic or financial security, (2) planning or coordination, or (3) uniformity of any matter in different parts of the country.[33]

The 1968 Federal Profits Act was promulgated, interestingly, not pursuant to any entry in the Third Schedule of the Constitution. But instead, it, according to the preamble of the Federal Act, was promulgated in “the national interest of Pakistan in relation to the achievement of uniformity within the meaning of clause (2) of Article 131 of the Constitution”. Significantly, the Third Schedule of the 1962 Constitution contained in Entry No. 13, the item “corporations”, and in entry no. 5, “inter-provincial trade and commerce”, but the legislature, importantly, had not invoked these entries while promulgating the 1968 Federal Profits Act. The Court pays a particularly heightened attention to this fact.

This observation, however, ducks the question that Justice Munib Akhtar forces himself to answer in International Freight, supra. In International Freight, Justice Munib Akhtar held that the “scope or extent of the legislative entry or competence (i.e., the field) is not determined by how the power is manifested in sub-constitutional legislation.”[34] And more pointedly that “[i]t is certainly not the case that the legislative tail wags the constitutional power”.[35] Yet, in Shafiquddin Moinee, Justice Munib Akhtar allowed his analysis to be driven by the fact that the 1968 Federal Profits Act’s preamble did not mention that it was being promulgated under Entries No. 13 (corporations) or Entry No. 5 (inter-provincial trade and commerce). The Court, itself, does not independently make an argument that 1968 Federal Profits Act necessarily did not and could have fallen in these entries at the time of the Act’s promulgation. But to his credit, in International Freight, Justice Munib Akhtar had, however, carved out space for himself by stating that “the manner in which a legislative competence is manifested in sub-constitutional legislation can shed important light on the extent and scope of the power and related entry (if any)”.[36] This “light” was all too strong and did most of the work in Shafiquddin Moinee.

The Court in Shafiquddin Moinee, therefore, inferred that the “pith and substance” of the 1968 Federal Profits Act was not “corporations”, which now, in the 1973 Constitution found itself is contained in Entry No. 31 of the Federal Legislative List Part I. Nor was the Court satisfied with the argument that the “pith and substance”, under the 1973 Constitution, could fall under Entry No. 27 of Part I of the Federal List, which mentions “inter-provincial trade and commerce”.

In the 1973 Constitution, before the passage of 18^th Amendment, Entry No. 26 of the Concurrent List, was an item that stated: “Welfare of labor, providend funds; employer’s liability and workmen’s compensation, health insurance including invalidity pensions, old age pensions”. According to the High Court of Sindh, when the 1973 Constitution came into being, the 1968 Federal Profits Act, remained Federal Legislation but was covered by the item at Entry No. 26 of the Concurrent List. After all, the money is to be handed to the “worker[s]” as defined in section 2(f) of the 1968 Federal Profits Act, for their “welfare”.

The next important move that Justice Munib Akhtar makes is that once the “pith and substance” of an existing legislation as provided for in Article 268 of the 1973 Constitution has been ascertained, “it then remained, as it were, ‘fixed’ in the legislative entry no. 26 of the Concurrent List”.[37] In other words, if the “pith and substance” of an existing legislation has been charted out to a particular entry in the Concurrent List, now removed, then if that entry does not now exist in the Federal Legislative Lists, then the “pith and substance” of that legislation cannot now be “altered” by pointing to another entry, even if that entry supposedly covers that subject area.[38] Put another way, even if the 1968 Federal Profit Act can arguably be said to be related to an entry such as Entry No. 31 of the Part I of the Federal Legislative List, which covers the subject matter of “corporations”, then because the Act was not promulgated under those entries, it cannot now be said to be promulgated under the identical entries in the now existing Constitution. Whether or not the original determination was the right call is not something that Justice Munib Akhtar explores in detail.

In making this determination, Justice Munib Akhtar defers almost entirely to the preamble of the 1968 Federal Profits Act. That is, just because the legislature said it was invoking Article 132(2) of the 1962 Constitution, it was doing so rightly, and other entries do not require consideration. And while, in this case, this contention seems benign, because the more appropriate entry does, for the first time, show up in the 1973 Constitution, namely, Entry No. 26 of the Concurrent List, after the 1968 Federal Profits Act had already come into existence, it may not be so in other contexts, as Justice Munib Akhtar himself recognized in International Freight.

Noticeably, in International Freight, a core federal subject, that is of imposing tax on the provision of services, was devolved onto the Provinces after the 18^th Amendment. In contrast, in Shafiquddin Moinee, a subject in the Concurrent List, occupied by the Federation through its legislation, was devolved onto the Provinces.

ii. Provincial Prerogative to Legislate Overturning Central Legislation in an Area Squarely within the Domain of Provinces

In Karamat Ali, the Court held that “police” was a subject area that quintessentially belonged to the Provinces, and hence the Provinces could legislate on this area, whereas any Federal Legislation enacted in this regard would have to give way.

a. Karamat Ali and Police

In Karamat Ali, the Sindh Government’s promulgation of Sindh (Repeal of the Police Order, 2002 and Revival of the Police Act, 1861) Act, 2011 (“2011 Sindh Police Act”), was challenged. This Act, as the name suggests, sought to repeal the Federal Legislation, that is the Police Order, 2002, and, instead, restore the archaic Police Act, 1861. The Petitioners were unhappy and had come to the Sindh High Court, invoking Article 199 of the Constitution, pointing to, among other things, the deplorable state of police in Sindh.

The question of whether the Sindh Assembly could have actually enacted the 2011 Sindh Police Act boiled down to whether this was a subject left over to the Provinces under Article 142(c) of the 1973 Constitution post the 18^th Amendment. In Karamat Ali, Justice Munib Akhtar writing for the Sindh High Court, traced the trajectory of the Police Act, 1861 as the Legislative Lists ebbed and flowed. For the Sindh High Court, there was no question that in the 1935 Act, the 1956 Constitution and the Interim Constitution, the subject-matter of “police” exclusively fell within the domain of the Provinces.

The respondents in Karamat Ali asserted that previously the Police Act, 1861 fell within the “field” of Entry No. 2, in the Concurrent List, now removed by the 18^th Amendment. The Entry No. 2 stated: “Criminal procedure, including all matters included in the Code of Criminal Procedure, on the commencing day”. The consequence of this argument was that even after the 18^th Amendment, and removal of the Concurrent List, under Article 142(b) of the 1973 Constitution, “criminal law, criminal procedure and evidence” remained concurrent subjects, that it, both the Parliament and the Provincial Assemblies could legislate in these areas. Therefore, the argument went, since the Federal Legislation is competent in the area of criminal procedure, and since the Police Act, 1861, and the Police Order, 2002, fell within the domain of criminal procedure, therefore, the Province could not legislate to repeal the Police Order, 2002, and institute, in its stead, the Police Act, 1861.

This is because even when the powers enjoyed are concurrent, the argument continued, once the Federal Legislature has spoken, under the “doctrine of occupied field”, which emanates from Article 143 of the 1973 Constitution, the Provincial Legislature could not then enact a law in the same domain. This doctrine essentially boils down to the idea that the Federal Legislation trumps and ousts the Provincial Legislation to the extent that the Federal Legislature has legislated in that subject area. Under this doctrine then, a Provincial Legislation seeking to amend a Federal Legislation when the Federal Legislation has been enacted pursuant, not to its exclusive, but even its concurrent power, is “ipso facto void”.[39]

The High Court of Sindh in Karamat Ali disagreed with the contention that the Police Police Act, 1861 fell under the category of “criminal procedure”, and pointed to Code of Criminal Procedure, 1898, to drill in the point that the Police Act, 1861 could not be characterized as a procedural law. It, in fact, dealt with the police force, by, among other things, providing for its “composition, appointment, discipline, terms and conditions of service and such like matters”.[40] Second, Sindh High Court pointed to the preamble of the Police Act, 1861 which stated that it had been enacted for “prevention and detection of crime”. Hence, the Sindh High Court concluded that “the Police Act [1861] did not come within the scope of ‘criminal procedure’ legislative field on the commencing day of the 1973 Constitution”.[41]

In reaching this conclusion, the Sindh High Court, had to step aside the contention that amendments in the Police Act, 1861 were made through federal legislation, for instance in Federal laws (Revision and Declaration) Ordinance, 1981 (“1981 Ordinance). This fact was presented to counter the argument that under the 1973 Constitution, prior to the 18^th Amendment, the Police Act, 1861 was not exclusively a provincial subject. The Court, importantly, held that the amendments made through the federal legislation were minor, and, in any event, were introduced at the time of General Zia-ul-Haq’s infamous (and detrimental) dictatorial rule, where respect for constitutional norms could not be expected. This is something that Justice Munib Akhtar also alluded to in International Freight, supra. Justice Munib Akhtar, importantly, held in Karamat Ali that: “An example from a time when the Constitution was in abeyance and the country under Martial Law is no example for how the federal nature and structure of the Constitution is to work in normal circumstances”. [42] In other words, what happens during the times of martial law, when the Constitution is in abeyance, does not have an adequate precedential value.

Once the Sindh High Court had concluded that “police” as a subject was neither in the Federal Legislative List, nor in the Concurrent List in the pre-amendment 1973 Constitution, then it followed that the Police Order, 2002 could not have been enacted by the Federal Legislature.

However, Article 270AA(2) of the 1973 Constitution, granted legitimacy, presumably in the interest of continuity, to ”all laws including President’s Orders, Acts, Ordinances, Chief Executives’ Orders, regulations, enactments, notifications, rules, orders” promulgated between 12 October 1999 and 31 December 2003. But while the 2002 Order had been granted a license to exist, it could only exist as a Provincial Legislation.[43] In the words of Justice Munib Akhtar, the Police Order, 2002 “without any doubt lay in the exclusive provincial domain upon the full restoration of the Constitution”.[44]

And with this the Sindh High Court was ready for its final punch. After the 18^th Amendment, it was the sole prerogative of the Sindh Assembly to enact the 2011 Sindh Police Act, and therefore if the Sindh Assembly sought to bring back the archaic Police Act, 1861, the 1973 Constitution posed no hurdle.

iii. Existing Institutions in the Federal Domain

a. Dr. Nadeem Rizvi, Hospitals and a Museum

The question that the High Court in Sindh looked at in Nadeem Rizvi emanated out of the Implementation Commission’s (formed under Article 270AA(9) of the 1973 Constitution) recommending the “devolution” to the Provinces three medical institutes with hospitals and attached medical teaching and research facilities, and separately, a museum, all of which were previously in the domain of Federal Ministries. These three medical institutes included: (1) Jinnah Post Graduate Medical Centre (“Jinnah Centre”), (2) National Institute of Cardiovascular Diseases (“NICD”), and (3) National Institute of Child Health (“NICH”). The museum in question was: National Museum of Pakistan, Karachi (“National Museum”).

The Sindh High Court deemed the purported process of devolution of the three medical institutes and the museum by the Implementation Commission as void, since the Implementation Commission had traversed beyond its jurisdiction in dealing with matters not expressly mentioned in the Concurrent List. The Implementation Commission had been formed for the express purpose of devolving matters mentioned in the Concurrent List as specified in Article 270AA(8) of the 1973 Constitution. But “there was no such entry” in the Concurrent List to which these institutions could be said to belong.[45] Because the Implementation Commission did not have the prerogative to transfer these institutes to the Provinces, the Federal Cabinet and Government could not have accepted such a recommendation from the Implementation Commission – the whole exercise being “devoid of lawful effect or authority”.[46]

The High Court of Sindh, however, went further in dealing with the legislative entry lists to determine with which tier of government, the three medical institutes and one museum should lawfully be parked. As a result, the High Court of Sindh, again, had to resort to the “pith and substance” test. The Court resolved that for the three medical institutes, the “pith and substance” led it to Entry No. 16 in Part I of the Federal Legislative List, which states: “Federal agencies and institutes for … research, for professional or technical training, or for the promotion of special studies”. The National Museum was said to fall within legislative field of Entry No. 15, which mentions: “Libraries, museums, and similar institutions controlled and financed by the Federation”. For its aid, the High Court, also invoked a principle, long recognized in Pakistan’s constitutional jurisprudence that “entries on legislative lists are to be construed and applied in the broadest possible terms”.[47]

For Jinnah Centre, the Court noted that it had come into existence not through legislative but executive fiat.[48] And while Article 268 of the 1973 Constitution, which provided for the continuation of existing laws at the promulgation of the 1973 Constitution did not strictly apply, but the principle still did. At the time of the 1973 Constitution coming into existence, the Court held that Jinnah Centre was a federal institution, and it remained so after the 1973 Constitution, by virtue of Entry No. 16 of the Part I of the Federal Legislative List. Second, and the Court makes much of this fact, that Jinnah Institute was, in essence, a combination of two separate institutes: the Jinnah Central Hospital and Basic Medical Sciences Institute, the latter being a research and teaching institute.[49] The combination, according to the Court, allowed Jinnah Centre to go “from strength to strength thereafter” and, as a result of which, it was “not possible to conclude that the research aspects of the Institution are, or were … merely ancillary or incidental to the operation of the hospital”.[50] The Court’s reasoning with respect to NICH, another instituted created by the executive rather the legislature, was almost identical.[51]

For NICD, the Court held that it was initially created through a trust deed on 08 May 1976 (“Trust Deed”), with the objective of not only providing “facilities for treatment of Cardiovascular Diseases” but also (1) setting up a treating and training center for postgraduate and undergraduate medical students and nurses, (2) a center for research into Cardiovascular Diseases, and, further, for (3) conducting research and training in the relevant fields. Moreover, the Trust Deed was superseded by the National Institute of Cardiovascular Diseases (Administration) Ordinance, 1979, which in its section 6 provided the functions of NICD. These functions included, under section 6(4), “to “carry out research in Cardiovascular Diseases for prevention and control of cardiovascular diseases as well as for its treatment”, and also, under section 6(5), “to undertake training of medical students and nurses, both undergraduate and post-graduate, in cardiovascular diseases”. The Court reasoned that from these provisions it becomes apparent that the purpose of NICD was not only to “’treat’ … diseases, but also to ‘investigate’ them”.[52] And that “holistically” viewed the NICD, operating under a federal legislation, fell within the “pith and substance” of an entry of the Federal Legislative List, and hence could not have been devolved to Provinces.[53] As a result, the subsequent promulgation by the Sindh Government of the National Institute of Cardiovascular Diseases (Sindh Administration) Act, 2014, was not possible under the 1973 Constitution, since NICD “already existed as a statutory body under federal law” and rightfully so.[54]

For the National Museum, the Court pointed towards Entry No. 15 of the Part I of the Federal Legislative List, and held that there was no entry in the Concurrent List that would have dealt with the subject of Museum, and as a result devolution was, again, not possible.[55]

Instead of dealing with legislative competencies of the Central and the Provincial Governments, the Court in Nadeem Rizvi was confronted with the fate of federal institutions that the Federal Government was more than happy to give onto the Provinces. In other words, there was no dispute between the Centre and the Provinces, which usually exists in cases of these nature; both were on the same side, but the Constitution supposedly was not. The Court, however, said that it could not under the 1973 Constitution allow for such “devolution” for the simple reason that it exceeded the mandate of the 1973 Constitution.

The Supreme Court of Pakistan subsequently fully agreed with the High Court of Sindh that the Implementation Commission constituted under Article 270AA(9) of the 1973 Constitution, went outside its mandate expressly provided in Article 270AA(8) when it sought to devolve the three medical institutes and one museum from the federal ministries’ control over to Sindh.[56] The Supreme Court, importantly, further agreed with the High Court of Sindh on the “pith and substance” theory.[57]

D. Cooperative or Marble Cake Federalism

There is a particular conception of Federalism that emerges from the discussion above, one where there are bright lines. There has to be a determination whether with respect to a particular subject matter, the Federal Legislature or the Provincial Legislature can legislate. Once that determination has been made, it is only that legislature with not only the prerogative to legislate, but also the prerogative to govern that policy area. This is what follows from the “pith and substance” doctrine, which we have seen Justice Munib Akhtar deploy with some precision in at least four different instances mentioned above.

Aurangzeb Alamgir, however, from Lahore High Court, authored by Justice Syed Mansoor Ali Shah, breaks new ground, and introduces a concept, not yet fully embraced in Pakistan’s constitutional jurisprudence. Under Cooperative Federalism, in some instances at least, both the Federal and Provincial Legislature may be held competent to legislate and govern the matters, rather than doing so exclusively.

a. Aurangzeb Alamgir and Higher Education

For our purposes, the question that the Lahore High Court set to resolve in Aurangzeb Alamgir was whether Higher Education Department, Government of Punjab had exceeded its constitutional mandate by issuing two notifications; one, constituting a Search Committee for recommending candidates against positions of vice chancellors in four of the higher educational institutes in Punjab, and two, providing prerequisites and criteria for the selection of the post of Vice Chancellor. These two notifications had been issued under section 14 of the University of Punjab Act, 1973 (“1973 Punjab Act”) as amended by the Public Sectors Universities (Amendment) Act, 2012 (“2012 Amendment Act”). The contention was that this subject fell within the exclusive domain of the Federal Legislature since Entry No. 12 of Part II of the Federal Legislative List provided: “Standards in institutions for higher education and research, scientific and technical institutions”. And once the Higher Education Commission Ordinance, 2002 (“2002 HEC Ordinance”) had been promulgated, then under the doctrine of “occupied field”, the Provincial Legislation on the same subject was not possible. Therefore, it was pled that either section 14 of the 1973 Punjab Act had to be struck down, or alternatively, be read down to make it consonant with the 1973 Constitution.

The Lahore High Court disagreed, and upheld section 14 of the 1973 Punjab Act, allowing the Higher Education Department to not only constitute the Search Committees, but also provide for the criteria on which the candidates for the position of Vice Chancellor were to be evaluated and selected.

The Court began its analysis by “mapping ‘education” as a legislative subject”.[58] “Education” was an exclusive subject for the Provinces under the Government of India Act, 1935, meanwhile “federal agencies and institutes for the purposes of research, professional or technical training or for the promotion of special studies” were said to fall within the federal domain. [59] Similar, trajectory followed through. In the 1956 Constitution, Entry No. 20 of the Provincial List mentioned “education” and included “universities, technical education and professional training”. Meanwhile, Entry No. 21 in the Federal List stated, “federal agencies and federal institutions for the promotion of special studies and special research; libraries and museums financed by the Federation”. In the 1962 Constitution, again, “education” was not mentioned in the Third Schedule, the only one list for the Center, but Entry No. 30 “provided for central agencies and central institutions for the promotion of special studies and special research”.[60]

In the 1973 Constitution, it was Entry No. 38 in the Concurrent List, that allowed both the Provinces and the Federation to legislate with regards to “[c]urriculum, syllabus, planning, policy, centres of excellence and standards of education”. Additionally, Entry No. 39 in the Concurrent List, provided for “Islamic Education”. But in keeping with the previous Constitutions, Entry No. 16 gave Federation exclusive domain over “Federal agencies and institutes for … research, for professional or technical training, or for the promotion of special studies”.[61]

The Court noted that “education” appeared to be broader subject matter, encapsulating within it “standards of higher education”. And hence there seemed to be an “overlap of legislative competence”, with both Provinces and the Centre constitutionally allowed to legislate on this subject.[62] The Court, then, reasoned that the exclusivity of competence as envisioned in Article 142 of the 1973 Constitution was not possible in this case.[63] At the same time, the 18^th Amendment, according to the Court, was to be given full effect which “gives more legislative space to the Province”.[64] The Court, as a result, dispensed with the recognized doctrine of “occupied field”, holding instead that “federal legislature does not oust the legislative power of the provincial legislature” except for where there was an “unavoidable and ineluctable direct conflict”.[65] The doctrine of “occupied field” is akin to what Justice Mansoor Ali Shah refers to as “preemptive federalism” in which “the federal law preempts a provincial law to enter the common legislative field”, which the Court sets aside in favor of “Cooperative Federalism”.[66]

The interpretive tool that Justice Mansoor Ali Shah employs in the process goes by the name of Cooperative or Marble Cake Federalism. Under this theory, a clean break between different tiers of government is not required and instead there is an emphasis on “partnership between different levels of government” for the purpose of “effective public service for the nation”.[67] Justice Mansoor Ali Shah in line with his general jurisprudential bent advocates for a “purposive interpretation” of the Constitution, particularly Article 142 of the 1973 Constitution, which allows for the rejection of “rigid formalism”.[68]

The cooperation that the Court envisions in this context is that the Federal Government is to set “baseline minimum national standards” whereas the Provinces are “fully empowered to go beyond these minimum standards”.[69] In essence, the Federal Government set the floor, whereby the Provinces have been provided with a one-way ratchet, to only go above and beyond those standards, but not below. This “vertical power sharing” is expected to adequately confront “complex issues” such as those of education.[70]

In a way, this effort by Justice Mansoor Ali Shah is to have the best of both worlds. But it comes at a cost of introducing concurrency through the back door even though concurrency has been limited in the 1973 Constitution under Article 142(b) to areas of “criminal law, criminal procedure and evidence”.

There is also a potential narrower reading of Aurangzeb Alamgir, but the Lahore High Court went out of its way to shut down that reading. Under the narrower reading, the Higher Education Commission under section 10(1)(a) the 2002 HEC Ordinance, has only been required to “formulate policies, guiding principles and priorities for higher education Institutions for promotion of socio-economic development of the country”. The Court observed that these are merely guidelines, and the Provinces are not required to abide by them, since there are no penal consequences for non-observance.[71]. If the Court had stopped here, then it could have been argued that if the Federal Legislation had wanted to, it could provide for binding standards on the Provinces as well under Entry No. 12 of the Part II of the Legislative List, ousting any Provincial interference in the subject. But this was not the case here, and hence until the Central Government legislated with binding standards, the Provinces could possibly set their own standards. The Court, however, anticipated this argument and categorically reinforced that: “[E]ven if the HEC Ordinance provided standards (as opposed to minimum standards) in institutions of higher education, they would be contextualized in the constitutional scheme and interpreted in a manner to promote cooperative federalism so that the federal and provincial standards smoothly co-existed.”[72]

It may be of some significance that the Court in Aurangzeb Alamgir was dealing with an Entry in Part II of the Legislative List. To reiterate, there are two parts to the Federal Legislative List: Part I and Part II. These parts, however, are not equal in status. Under Article 153 of the 1973 Constitution, the Council of Common Interest had been envisioned, a body that mandates participation from and by the Provinces. The Council, under Article 154 of the Constitution, is required to “formulate and regulate policies in relation to matters in Part II of the Federal Legislative List and shall exercise supervision and control over related institutions”. Therefore, there is an overt recognition from the 1973 Constitution, itself, that the Entries in Part II of the Federal Legislative List have underlying Federalism concerns, where a complete and categorical ouster of the Provincial Assemblies in such matters may not be ideal.

At the same time, the holding in Aurangzeb Alamgir, does not go beyond the subject of education. Therefore, it is equally possible to contend that the holding of Aurangzeb Alamgir is only confined to the special situation of education, not shared by other Entries in Part II of the Federal Legislative List of the 1973 Constitution.

This particular conception of Cooperative Federalism whereby both the Federal and the Provincial Legislatures have the power to promulgate legislations is in some tension with the “pith and substance” doctrine, or at the very least the “pith and substance” doctrine as understood by Justice Munib Akhtar. In International Freight, Justice Munib Akhtar held that “a legislative entry (or “field” of legislative power) exclusive to one legislature is precisely that: a legislative area made over to that legislature where it alone, subject to any incidental encroachment permissible under the “pith and substance” rule, can legislate.”[73] Further, and importantly, in Karamat Ali, the Court held that even when there was a Concurrent List, “it [was] only the legislative field that [was] concurrent, and not the laws made by the respective legislatures”.[74] In other words, nothing could be added to a Federal Legislation by the Provincial Legislature, even in instances where concurrency had been established.[75]

Therefore, these two conceptions of Federalism are at odds. This is probably so because Justice Munib Akhtar’s and Justice Mansoor Ali Shah’s jurisprudential priors are at odds. Justice Munib Akhtar is arguably a formalist; whereas Justice Mansoor Ali Shah can be characterized as a purposivist. Another way of characterizing the two would be that Justice Munib Akhtar is a strict constructionist, taking the “pith and substance” doctrine to its logical end, where ever it might take him, whereas Justice Mansoor Ali Shah is a pragmatist, ready to deploy conceptual tools, if, in his view, such deployment serves the end of more effective government.

But Cooperative Federalism is something that even Justice Munib Akhtar dabbles with in Karamat Ali, albeit not in the context where he is evaluating the “pith and substance” of a particular legislation, but rather in the situation where the appointment and removal of IG Police, Sindh is being contemplated.

b. Karamat Ali and Inspector General Police

There is something akin to Cooperative Federalism, as espoused by Justice Mansoor Ali Shah in Aurangzeb Alamgir, despite not being referred to by the same name in Justice Munib Akhtar’s Karamat Ali. In Karamat Ali, the second question, distinct from the question of whether 2011 Sindh Police Act was intra-vires the Constitution, the Court also had the opportunity of looking into the issue of “frequent transfers and changes in postings”, particularly with respect to the post of IG Police of Sindh.[76] The Court invoked its jurisdiction under Article 199(1)(c) of the Constitution “for the enforcement … of the Fundamental Rights”. The contention was that the repeated transfers “had reduced the police force essentially to an instrument answering only to political masters, to the manifest detriment of the public at large amounting to the denial of the fundamental rights” including, among others, the right to life under Article 9, right to be detained only in accordance with law under Articles 4 and 10, and right of free movement under Article 15 of the 1973 Constitution.[77]

The High Court of Sindh in Karamat Ali set aside the unceremonious and premature removal of the IG Police, Sindh, by the Government of Sindh. This was primarily because according to Justice Munib Akhtar the Government of Sindh violated the Sindh Government Rules of Business, 1986 (“1986 Sindh Rules”), promulgated under Article 139 of the Constitution. The 1986 Sindh Rules provided that the post of IG Police was a tenured position, and with the statutorily mandated tenure specified as five (05) years.[78] The 1986 Sindh Rules allowed the Chief Minister of Sindh to extend the tenure, but not to reduce it.

The Court then contemplated the appointment and removal process of the IG Police, Sindh, and how notions of Cooperative Federalism were to be deployed. Under Article 240 of the 1973 Constitution provides for, among others, an All-Pakistan Service, the “hallmark” of which is that civil servants “belonging to such service alternate between the Federation and Provinces throughout their careers”.[79] Under the Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985 (“1985 PSP Rules”), the top echelons, such as the position of IG Police, Sindh, have to be manned by personnel belonging to All-Pakistan Service. Therein lies the conundrum in the instant case: “the officer is federal but the post is provincial”, thereby necessitating the involvement of both the Federal and the Provincial Governments.[80]

In dealing with such similar issues of appointments, an agreement dated 19 September 1993 had been penned, reached between the then Prime Minister, Governors, Chief Ministers and the Chief Secretaries of the Provinces.[81] Pursuant to this agreement, a PSP officer was to be appointed by the Federation only with “consultation” with the Provincial Government, taking seriously into account the recommendations of the Provinces.[82] The Court in Karamat Ali holds, that irrespective of whether the agreement continued to exist, the exercise of appointing a PSP officers to the Provinces has been and “must [continue to] be a collaborative effort”.[83]

Section 4 of the now restored Police Act, 1861, provided that the power of the appointment of IG Police lied with the Province. This power, the Court held, could only be exercised by the Chief Minister and his Provincial Cabinet, since this power lied with the Provincial Government: after Mustafa Impex,[84] the Provincial Government, necessarily meant Chief Minister and his Provincial Cabinet.[85] This tenure has been fixed under 1986 Sindh Rules to be five years, and the Provincial Government cannot violate its own laws at its whim.[86] This essentially means and the Court holds that the appointment process has to be collaborative.[87] The Federal Government is free to recommend a candidate and the candidate has to fulfill the requirements of 1985 PSP Rules, but such appointments cannot be made unilaterally, and the Provincial Government has to be involved, and it is only with its concurrence that the officer can be allowed to take position in the Province.[88] In other words, “[t]he two [Federal Government and the Provincial Government] must act together to ensure that the best possible officer is selected from the available pool”.[89]

More pertinently, for the case at hand, that dealt with unceremonious removal of the IG Police, Sindh, by the Province of Sindh, the Court laid out an elaborate process, along with setting the standards which can allow for the Provincial Government to “surrender” a federal officer to the Federal Government. The decision for such ouster has to be taken by the Provincial Cabinet, as opposed to being taken elsewhere, and merely endorsed by the Cabinet.[90] There is a notice requirement to the IG, who has been granted the prerogative to attend the Cabinet meeting to make his case.[91] Since the tenure of the IG Police, Sindh, has been provided statutorily, the removal decision has to be for “compelling reasons” only and that too in writing, pursuant to the Anita Turab case[92].[93] This decision is then transmitted to the Federal Government, which after a deliberative exercise, must concur for the removal to happen.[94] Without this concurrence, the removal cannot be allowed. And this entire exercise is then reviewable by the Courts.[95] Similarly, if the Federal Government seeks to remove its officer from a position as that of IG Police, Sindh, then it has to pass through similar hoops: take the decision in a Cabinet meeting; the officer’s position to be taken into account after allowing them with the opportunity to represent themselves; removal decision to be taken only for “compelling reasons” and that too in writing, which are then to be communicated to the Provincial Government, whose concurrence, again, is mandatory for removal to take effect.[96] As a result, the appointment and removal of the top PSP officials in the Province cannot be unilateral, but must, as required by the Court, be a collaborative exercise.

The two tiers of Government cannot be at war with each other, seeking to outwit and outmaneuver the other, but have been required to work together, in at least, placing top bureaucratic officials in a Province. Therefore, the Superior Courts, in two different cases, have recognized that the doctrinal tools needed to understand the functioning of the government and for the purposes of resolving thorny Federalism concerns, require the embracement of concepts of cooperation.

E. Conclusion

The constitutional courts in Pakistan have long embraced the doctrine of “pith and substance”, which is deeply embedded in the way Federalism concerns are understood and resolved. The “pith and substance” test has conceptual clarity, helping in establishing exclusive domains for the Federation and the Provinces, which cannot be interfered with by the other, respecting the autonomy of each tier of Government.

But then there are situations where this neat bifurcation of powers breaks down. In the interest of smooth governance, in a highly polarized society, where the Provincial and Federal Governments may at times be at loggerheads with each other, conceptual legal tools such Cooperative or Marble Cake Federalism may be welcome addition to the doctrinal tool-kit. Instead of conceiving the Federal Government and the Provinces as rivals, jealously guarding their domains of power, a conception where the two are, at times, compelled to work together, may pave the way for a better and more democratic governance.

Acknowledgement – Yahya Assad Rana, a fifth-year law student at LUMS and Editor LUMS Law Journal, made valuable contributions to this article.

[1] Bench: Munib Akhtar and Abdul Maalik Gaddi, JJ. The case is hereafter referred to as “International Freight”.

[2] Bench: Munib Akhtar and Omer Sial, JJ. The case is hereafter referred to as “Shafiquddin Moinee”.

[3] Bench: Munib Akhtar and Arshad Hussain Khan, JJ. The case is hereafter referred to as “Karamat Ali”.

[4] Bench: Ahmed Ali M. Sheikh, Munib Akhtar and Muhammad Ali Mazhar, JJ. The case is hereafter referred to as “Nadeem Rizvi”.

[5] Bench: Syed Mansoor Ali Shah, C.J and Shujaat Ali Khan. The case is hereafter referred to as “Aurangzeb Alamgir”

[6] International Freight at paragraph 28.

[7] Id.

[8] Id.

[9] Id.

[10] International Freight at paragraph 29.

[11] Id.

[12] Id.