Effect of 18th Amendment on the Legislative Powers of the Federation and Provinces

305 EFFECT OF 18TH AMENDMENT ON THE LEGISLATIVE POWERS OF THE FEDERATION AND PROVINCES [A Case of Labour Legislation in the changed Constitutional Scenario] M. S. Jamal, Advocate, Lahore Published in: All Pakistan Legal Decisions Year of Publication: 2011 Suggested Citation: 2011 PLD Journal Section p.115 With the repeal of Concurrent Legislative List Legal debate/ controversy has started on the issue whether Federal Legislature can (Cit. p.116) legislate on labour-related matters after the devolution plan was affected within the meaning of the Constitution. Professionals are divided in opinion. May we find a legal way to the power of the Federal legislature in this regard, in view of trade unionism related commitments of the Federal Government and need to address the labour relations issues of national importance? The 18th Constitutional Amendment that came into force on 20th April, 2010 has repealed, the distribution of legislative powers between the Federation and Provinces the Concurrent Legislative List (by omitting entries 1-47) from Schedule IV appended to the Constitution through Majlis-e-Shoora (Parliament) and Provincial Assembly respectively that is governed by Articles 141 - 144 will now be in the amended shape as follows;-- "Subject to the Constitution, Majlis-e-Shoora (Parliament) may make laws (including laws having extra-territorial operation) for the whole or any part of Pakistan, and a Provincial Assembly may make laws for or any part thereof - (Art.141). Majlis-e-Shoora (Parliament) shall have exclusive power to make laws with respect to any matter in the Federal Legislative List - (Art.142(a). Majlis-e-Shoora (Parliament) and a Provincial Assembly shall have power to make laws with respect to criminal law, criminal procedure and evidence - (Art.142(b)). 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 enumerated in the Federal Legislative List - (Art.142(c). 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 - (Art.142(d))." Article 143 relates to inconsistency between Federal and Provincial laws and so it will not be relevant to our discussion on the distribution of subject areas between the Parliament and a Provincial Assembly for the purpose of legislation. The possibility to invoke the application of Article 144(1) (reproduced below) is, however, examined in this regard.-- Article 144(1).--If one or more Provincial Assemblies pass resolutions to the effect that Majlis-e-Shoora (Parliament) may by law regulate any matter not enumerated in the Federal Legislative List in the Fourth Schedule, it shall be lawful for Majlis-e-Shoora (Parliament) to pass an Act for regulating the matter accordingly, but any Act so passed may, as respects any Province to which it applies, be amended or repealed by Act of the Assembly of that Province. (Cit. p.117) It is clear from the above provisions of the Constitution that if the matter of legislation on labour-related issues stands exclusively transferred from the domain of the Federation to Provinces as Federal powers in that regard are absolutely clinched and taken away, all efforts then to re-cloth the Federal Legislature with these powers will be an exercise in futile. If so needed for pronounced objectives of national importance to enable a Federal Labour Relations Bill to get through, the only remedy is to invoke the provision of Art.144 above. However, in such a case the province will have precedence or supremacy over the Federation. This will be an unusual situation and so it will be difficult to adhere to in normal circumstances. Let us now look at the subject of labour entries omitted from the repealed Concurrent Legislative List. These appear at S.Nos.26, 27, 28, 29, 30 and 31 and are reproduced below for the sake of reference:-- "26. Welfare of labour, conditions of labour, provident fund, employers' liability and workman's compensation, health insurance including invalidity pensions, old age pensions". "27. Trade unions; industrial and labour disputes". "28. The setting up and carrying on of labour exchanges, employment information bureaus and training establishments". "29. Boilers" "30. Regulation of labour and safety in mines, factories and oil fields". "31. Unemployment insurance." Laws on most of these subjects continue to exist on the statute book albeit their ownership is still to be determined. Mostly the Federal Government or erstwhile Central Government made those during British Rule in India. But laws on trade unions; industrial and labour disputes were made unequivocally by the Central Government by fully adhering to the laissez faire policy of the British mind in India to meet specific industrial objectives and the requirement of the time. Exercise of the doctrine of state intervention was intentionally avoided. India continues with the laissez faire policy of British time as evident from its labour relations laws discussed in the later part of this article. Clear departure from this policy was made in Air Marshal Noor Khan's Labour Policy of 1969 that resulted in the enactment of the Industrial Relations Ordinance, 1969. For the first time the law in its roots was based closely on the parameters of ILO's basic democratic Conventions No.87 (freedom of association) and No.98 (collective bargaining). This law was amended quit a number of times in the years to come. The system of Industrial Relations was strengthened by the Z.A. Bhutto's Labour Policy of 1972, known as fair deal in labour. Separate and independent Labour Judiciary (Labour Courts and, Courts and, Labour Appellate Tribunals in the provincial setting) that was brought in place under IRO 1969 was further strengthened, streamlined (Cit. p.118) and integrated with a newly created quasi-judicial body in the name of National Industrial Relations Commission, at the national level. The new body was entrusted with multiple functions including adjudication and overall superintendence over the working of the provincial labour courts. In this way, a well-planned regulatory system of labour relations was brought in force. The subject of trade unionism and freedom of association was dealt with both at the national and provincial level in a systematic manner. In addition, the requirement of workplace industrial relations was also not overlooked. The institution of participative management and procedure of redress of individual grievance were introduced in this law, enacted by the Federal Government. When this legislative framework has delivered considerable output, question arises: can adversarial effects so generated by the legislative and administrative devolution plan save it? Will the ownership of existing laws under the devolution plan be completely transferred to the Provinces or will these laws be repealed and Provinces will enact new laws on the subjects thereof to meet province - specific situation and conditions or the will Federal Government continue to have stake in their existence? To me it is not an easy task to summarily dispose of this huge work done during pre - and post-independence period. In any way any decision to dispense with this serious legislative asset with a stroke of pen will be fatal. Let us have a quick comparison with Indian legislative approach. Central Labour Acts in India cover the following areas:-- * Laws related to Industrial Relations * Laws related to Wages * Laws related to Working Hours, Condition of Service and Employment * Laws related to Equality and Employment of Women * Laws related to Deprived and Disadvantaged Sections of the Society * Laws related to Social Security * Laws related to Labour Welfare * Laws related to Employment and Training * Others And the Laws related to Industrial Relations are:-- 1. The Trade Unions Act, 1926 2. The Trade Unions (Amendments) Act, 2001 3. The Industrial Employment (Standing Orders) Act, 1946 4. The Industrial Employment (Standing Orders) Rules, 1946 5. The Industrial Dispute Act, 1947 While Pakistan has around 70 labour enactments on the statute book, the total laws on the statute book of India are 53 in number, out of which 9 were from the pre-partition period, enacted by the British Rule (Cit. p.119) in India and the remaining 44 were enacted by India in the post-partition period. Out of five laws related to industrial relation 3 are from the British time. Evidently, India continues with the policy of British Empire in India with regard to industrial relation that was overwhelmingly the policy of laissez faire or non-interventionism as pointed out in the above account. Another sharp contrast with India is the unique legislative development in Pakistan. ILO Conventions 87 and 98 concerning freedom of association and collective bargaining ratified respectively were ratified by Pakistan in the years 1951 and 1952. In pursuance of its commitment to ILO, Pakistan closely structured its industrial relations law based on the premises of these instruments. It is to be noted that India on the other hand has not so far ratified ILO Conventions 87 and 98 and therefore is not bound to base its labour relations law on these instrument. Pakistan does on the other hand. Pakistan has honored faithfully ILO's instruments, from the day of framing its Constitution in 1973. It is work-mentioning that it has also included the subjects of international treaties, conventions and agreements and international arbitration (concerning various Ministries) as Entry No.37 in the Federal Legislative List besides keeping the Concurrent Legislative List along with it in the Constitution. Is it not a mark of Pakistan's international and national concern besides recognizing Provincial capability to legislate for the interest of Provinces? ILO Conventions covering vast areas of the subject of LABOUR, with close proximity with almost all labour-related entries contained in the Concurrent Legislative List. Pakistan invariably is to legislate, broadly covering the following subject matters of ILO Convention ratified by it:-- * Freedom of Association and Collective Bargaining * Freedom of Association in Agriculture *. Working Hours and Rest Intervals * Employment of Women and Young Persons * Periodical Medical Examination * Workmen Compensation and Social Security * Employment of Young Persons and Children * Employment of Disabled Persons * Non-fee Charging Employment Agencies * Equality of Opportunity and Treatment * Labour Inspection * Suppression of Forced Labour * Abolition of Forced Labour * Worst Forms of Child Labour * Tripartite Consultation on Labour Standards * Indisgenous and Tribal Population * Seafarer's Identification Document (Cit. p.120) * Gender Equality based Remunerations * Employment and working conditions in factories, mines, commerce, ships, docks etc. The Conventions on these subjects as ratified by Pakistan include C.1, C.4, C.6, C.11, C.14, C.16, C.18, C.19, C.21, C.22, C.27, C.29, C.32, C.45, C.59, C.80, C.81, C.87, C.89, C.90, C.96, C.98, C.100, C.105, C.111, C.116, C.118, C.138, C.144, C.159, C.182, C.185. In other words, these subjects being part of the Federal Legislative List rightly fall in the domain of Federal legislature, though these subjects barring labour welfare areas if are further narrowed down safely cover the subjects of items 26, 27, 28 and 30 of the repealed Concurrent Legislative List. Nevertheless, this does not mean that the Federal Legislature is debarred to legislate on the subject areas of these Conventions. Despite the fact that one school of lawyer holds this view. They treat Conventions to be honoured by the Provinces also, but exclusive legislative power henceforth rests with them. This is a wrong perception and denial of a fact on the face of it. Article 142(a) clearly holds that the Parliament shall have exclusive power to make laws with respect to any matter in the Federal Legislative List. Virtually, trade unionism is universally acknowledged as subject of international character. Wherever legislation has been made on labour relations or trade unionism, it has been one at the national level. In a federal set up, provinces and states are automatically covered. Not only has this, Article 17(1) of the Constitution 1973 of the country, which is supreme law, also endorsed the commitment of Pakistan to freedom of association. Now, because of 18th amendment the entire edifice of legal structure of industrial relation has been demolished, consciously or unconsciously. No bigger harm to the basis of industrial relations law was done before, not even in General Zial-ul-Haq's time whose policies were opposed to trade unionism. It is a matter of recorded history that he did not allow any labour policy to come in his lifetime. Now, if Provincial legislature is to legislate in labour relations field independent of the Federation, its limits should be province-specific. For example, to legislate on workplace industrial relations and creation of provincial level labour judiciary and its linkage with Provincial High Courts. Even it can effectively evolve legislative measures to protect and bi-partite workplace code of conducts within provincial boundaries. Logically, it would be appropriate for the Provinces to legislative for higher productivity derives and workplace productivity bargain, welfare schemes, social security, labour inspection, social insurance, provident fund, creation of housing colonies for workers, safety and health at workplaces, workers children education, vocational training, wages etc. (Cit. p.121) It is generally contended that the decision to abolish Concurrent Legislative List along with the decision to abolish certain subject-related administrative ministries including the M/o Labour were taken in pursuance of the obligation laid down in Article 37, clause (i) of the Constitution of 1973 as contained in the Principles of Policy that reads as follows:-- "The State shall decentralize the Government administration so as to facilitate expeditious disposal of its business to meet the convenience and requirements of the public." Let me say that the abolition of Concurrent Legislative List prima facie has no nexus with the decentralization of Government administration, but the decision to abolish administrative ministries will be construed as having link with decentralization of Federal Government business or administration. However, creating this nexus or link with abolition of Concurrent Legislative List is not understandable. Nevertheless, to my perception it is not a wise decision as it may lead to multiple administrative issues and public inconvenience and difficulties. The question is who will check whom and who will coordinate the corresponding business in the provisions. Moreover, ministries are created under the rules of business made under Article 99(3) of the Constitution for the allocation and transaction of the business of the Federal Government. The ministries too are representatives of the state to the outside world. In fact, by the decision in an un-thoughtful manner and without lot of spadework is rightly creating confusion and upheaval in the arena in legislative as well as administrative work. Furthermore, Article 146 rightly provides the practical basis for transfer of any business to the provinces. It reads as follows:-- "Article 146(1). Notwithstanding anything contained in the Constitution, the Federal Government may with the consent of the Government of a Province, entrust either conditionally or unconditionally to that Government, or to its officers, functions in relation to any matter to which the executive authority of the Federation extends." Now, if the Federal Government is to rise to the occasion it can invoke the Federal Legislative List to make a clear law on industrial relations without duplicating functions with the Provinces on the subject. They are also advised not to devolve the Ministry of Labour for obvious reasons. At least there must be a relevant Ministry to do all this business for the Federal Government and to act as country's true representative at international forum. The set up of the Ministry of Labour and Manpower developed over a considerable period of time should not be allowed to devolve; otherwise, loss will be irreparable and irreversible.