Distribution of Powers and Adaptation of Laws in Pakistan

DISTRIBUTION OF POWERS AND ADAPTATION OF LAWS IN PAKISTAN DISTRIBUTION OF POWERS AND ADAPTATION OF LAWS IN PAKISTAN By Mohsin Abbas Syed* Federal principle of the United States Constitution has influenced the world more than the financial and military might of the United States. More than eighty per cent of the world's population lives in federal or semi-federal states.2 Even the authors3 of the Federalist Papers may never have imagined that charisma of federalism will win the heart and minds of the world. Federalism in India and Pakistan has been interpreted by the Supreme Courts as part of the basic structure of the constitutions of these nations.4 The power of the Parliaments to amend their respective constitutions does not include the power to alter the basic structure of the constitution including the federal principle. K.C. Wheare defines the federal principle to mean the method of dividing powers so that the federation and federating units are each, within a sphere, coordinate and independent.5 What is necessary for the federal principle is not merely that the federation, like the federating units, should operate directly upon the people, but, further, that each Government should be limited to its own sphere and, within that sphere, should be independent of the other6 Existence of a concurrent jurisdiction in some matters is not necessarily incompatible with the federal principle. But if there is a concurrent jurisdiction, there must exist also some provision to determine which authority, in case of conflict, is to prevail.7 K.C. Wheare also argued in favour of a single list for distribution of powers between federation and federating units.8 He called the person a supreme draftsman who could draw three lists and no charge of overlapping could be brought against them and declared a second exclusive list a great nuisance by citing the Canadian example. Drafting legislation in a federation poses a unique challenge. For example, inter state commerce clause9. in the United States Constitution has been used by the US Congress to regulate activities like meatpacking,10 labour relations,11 agriculture,12. civil rights13 and education.14 But situation in Pakistan differs from the United States because historically there were subjects which were specifically federal, provincial or concurrent. If any of those subjects are missing from the existing single federal list, it has to be construed as provincial subject. Despite this, Parliament of Pakistan has recently enacted an Act15 for reconstruction and rehabilitation of earthquake hit areas presumably invoking the entry of national planning and national economic coordination.16 If this Act is upheld by the Supreme Court, the national planning entry may become the commerce clause of the Constitution of Pakistan. Pakistan is a federation right from its inception17 except for the periods it remained under military rule. Federal principle was reflected in every constitutional dispensation.18 Whenever powers are distributed or re-distributed, number of issues surface because of any such dispensation and sometimes it is not possible to envisage all the future issues while decision about distribution or re-distribution of powers is being made. The Constitution (Eighteenth Amendment) Act 2010 has omitted the Concurrent Legislative List in order to transfer powers to the provinces in furtherance of federal principle and to have simplest form of distribution of powers with one exclusive Federal Legislative List. This re-distribution of powers has raised many issues of its own Historical Prospective In order to understand the problem posed by re-distribution of powers under the Eighteenth Amendment, one has to consider the historical prospective of distribution and re-distribution of powers in Pakistan. Reconstitution of India on federal basis was a popular demand of the then indigenous political leadership. The Nehru Report19 of 1928 proposed that in the Federation of India, the provinces be assigned enumerated functions and the residuary powers may be assigned to the Centre. Demand for Federal Constitution with residuary powers vested in the provinces was the first point in Jinnah's Fourteen Points20 of 1929. Government of India Act 1935 The Government of India Act 1935 reconstituted India on federal basis with eleven provinces. This Act provided three lists i.e. Federal Legislative List, Provincial Legislative List and Concurrent Legislative List to distribute legislative as well as executive powers between the centre and the provinces.21 The Governor-General was authorized to empower either the Federal Legislature or the Provincial Legislature to enact law with respect to any residuary matter not enumerated in any of the three lists.22 The federal law on a concurrent subject had overriding effect over a provincial law on the same subject.23. This Act saved the existing laws until those laws are altered, repealed or amended by a competent legislature.24 His Majesty, by Order in Council, was empowered to direct that any law shall have effect subject to such adaptation and modification as appeared to His Majesty to be necessary for bringing that law into accord with the provisions of the Act.25 The Government of India (Adaptation of Indian Laws) Order 1937 was passed by adapting the existing laws as central or provincial laws in order to clearly distribute the existing laws amongst the Central or Provincial Legislatures on the basis of subjects in the three legislative lists. This Act continued to be the temporary Constitution of Pakistan under the Indian Independence Act 1947.26 Constitution of 1956 Constitution of Pakistan 1956 contained three lists on the pattern of the Government of India Act 1935 for distribution of powers between the federation and the provinces.27 The existing laws were given lease of life subject to necessary adaptation.28 The President was required to pass order within three years for adaptations and modifications of the existing laws. He may also authorize the Governor of a province to exercise the same powers with respect to the laws relating to matters enumerated in the Provincial List.29 But this Constitution had not survived for three years due to the imposition of martial law in 1958.30 Constitution of 1962. Federal principle was kept intact, although, to a lesser degree in the Constitution of Pakistan 1962. Only one legislative list was provided in this Constitution enumerating the matters on which the Central Legislature had exclusive jurisdiction to legislate. The Central Legislature may also legislate on a residuary subject in the 'national interest'.31 Thus a highly centralized federal system was established.32 A central law was to prevail over a provincial law in case of a conflict between them.33 This Constitution also protected the existing laws subject to their necessary adaptation and required the President to make adaptation of laws through an Order to be passed within two years of the commencing day of the Constitution.34 The President may also authorize the Governor of a province to pass similar order with respect to which a Provincial Legislature has power to make laws.35 The adaptation orders were passed in 1964 by the President and the Governor of the Province of West Pakistan.36 This Constitution could not last more than seven years and another martial law was imposed in 1969.37. Constitution of 1973 The present Constitution of Pakistan (1973) initially provided two lists i.e. Federal Legislative List and Concurrent Legislative List for distribution of powers between the Federation and the Provinces.38 Federal Legislature (Parliament) has the exclusive authority to make laws with respect to matters enumerated in the Federal Legislative List. The Parliament and a Provincial Assembly had the power to make laws with respect to matters mentioned in the Concurrent Legislative List and for residuary matters only a Provincial Assembly had the powers to make laws.39 This Constitution also protected the existing laws subject to adaptation through Adaptation Orders to be made by the President and the Governor of a province with the permission of the President.40 The Adaptation Orders were passed by the federation and all the four provinces in the year 1975.41 Adaptation under Eighteenth Amendment. In all the constitutional arrangements prior to the enactment of the Constitution (Eighteenth Amendment) Act 2010, a mechanism for adaptation of the existing laws was provided to give effect to the revised scheme of distribution of powers between the Federal and Provincial Legislatures and executives. The federal government was given final say with respect to the adaptation of the existing laws. This has been done to avoid conflicts between the federation and federating units on adaptation of the existing laws. The Constitution (Eighteenth Amendment) Act 2010 repealed42 the Concurrent Legislative List but the subjects of electricity,43 criminal law, criminal procedure and evidence44 are still concurrent subjects on which the Federal Legislature (Parliament) and the Provincial Assemblies may legislate. The Constitution, in case of conflict, gives primacy to the Federal law over a Provincial law made on a concurrent subject.45 But the Constitution (Eighteenth Amendment) Act 2010 after omitting the Concurrent Legislative List and re-distribution of powers between the Federation and the Provinces has only protected the existing laws until these laws are altered, repealed or amended by the competent authority.46 The competent authority to the extent of the existing laws has been defined to mean the appropriate legislature.47 For administrative devolution of matters to the provinces, the Federal Government constituted an Implementation Commission48 but the Implementation Commission has no jurisdiction regarding adaptation of the existing laws. This has been left to the each province, in fact to legislative drafters, to determine the appropriate legislature for an existing law. It has not even been envisaged that laws are not made by expressly invoking a specific entry in any of the legislative lists. Further, there are laws which have been made on two or more subjects one of these subjects fall within the Federal Legislative List and the other subject has become a residuary subject on which only a Provincial Assembly is competent to legislate. It has been left to the legislative drafter of a province to decide or formulate an opinion as to the pith and substance49 of an existing law and whether there is an incidental encroachment50 or it is a colourable legislation.51 The retention of concurrent legislative jurisdiction, although only to the extent of four subjects, has also been problematic in exercise of the legislative authority. These subjects have not been enumerated in any list but have been incorporated in the text of the Constitution. Conclusion Federalism is deep rooted concept in Pakistan. Smaller Provinces consistently demand more autonomy and transfer of federal subjects to them. But redistribution of powers poses a real challenge for a legislative drafter especially with respect to adaptation of the existing laws. There are chances that drafters of provinces may differ in interpreting an existing law. A drafter may consider an existing law as a law on a residuary subject and draft a bill for its adaptation by the Provincial Assembly. Still drafter of another province may genuinely treat it a federal law on the basis of general entries in the Federal Legislative List like national planning, inter-provincial matters and coordination, and international treaties, conventions and agreements.52 The issues of laws on multiple subjects are more complex. Law of Higher Education Commission53 is just one example of many such laws. Mere proposal for its reorganization on the basis of re-distribution of powers has created a huge uproar in the society especially academia. This situation may promote unnecessary conflicts and litigation, and courts may be asked to interpret entries in the Federal Legislative List. This could have been avoided if a clause promoting cooperative federalism is incorporated in the Eighteenth Amendment for building consensus between federation and provinces on adaptation of the existing law