Against ‘liberal interpretation’

In the world of constitutional law, differences of interpretation make all the difference. Take, for instance, the issue of federal-provincial distribution of powers. What powers will the centre have and what powers shall be retained by the provinces? This was probably the single most important political question settled by the Constitution of the Islamic Republic of Pakistan, 1973. Bear in mind that this constitution was framed in the immediate background of our failure to resolve the same question, a failure which culminated in the tragic events of 1971.

The federal-provincial boundary in Pakistan has been neatly marked along the lines of Fourth Schedule of the constitution. It used to have two lists – the Federal Legislative List and the Concurrent List. After the 18th Amendment, there is only one left – the Federal Legislative List, comprising a total of 73 entries. Now the equation is simple: whatever fits into any of these 73 entries is legitimate territory for the exercise of federal powers; otherwise, not. Parliament can make laws on these matters and the federal government can exercise executive power over them. Whatever is not covered by these entries is provincial territory. Full stop.

The problem is that this neatly demarcated boundary is a boundary marked by words alone. And words, as we all know, are usually interpreted differently by different people. A lot, therefore, turns on which ‘principle of interpretation’ is to be employed when interpreting the entries of the Federal Legislative List. Should these entries, which mark the outer boundary of the federal realm, be interpreted ‘broadly’ or ‘narrowly’?

One way to answer this all-important question is to look at the purpose behind the constitution. There is no doubt that the object and purpose of the constitution was to promote decentralization and protect provinces from federal incursion. This is clear from both the text and the context. The text of the constitution starts with the ringing words of Article 1(1): “Pakistan shall be a federal republic.”

This phrase has been there in every one of our constitutions. And it was born out of the historical experience of South Asian peoples who underwent impoverishment and even famines under British India’s highly centralized government. Through the steel-frame of bureaucracy, the colonial government extracted wealth from the peripheries and funnelled it into the great cities of British India, the likes of Delhi and Lahore, and from there onwards to London. The federal model was adopted in our constitution to mark a stark break from this scheme.

When we look at the question in this historical light, there is no doubt that the entries in the centre’s powers contained in the Federal Legislative List ought to be interpreted narrowly. Whatever is not covered by the ordinary meaning of the said entries ought to be excluded from the federal ambit. The job of the constitution – and its judicial interpreters - is to protect the weaker party, ie the provinces, from transgressions by the centre. The rule should be: when in doubt, err in favour of the provinces.

While this may be the common sense approach to interpreting the Federal Legislative List, the prevalent judicial doctrine in Pakistan is, surprisingly, quite the opposite. This was famously articulated in the Elahi Cotton case (PLD 1997 SC 582): “It is also a well-settled proposition of law that an entry in a legislative list cannot be construed narrowly or in a pedantic manner but it is to be given liberal construction.” Similar remarks in favour of a ‘liberal interpretation’ were made by the Supreme Court two years later in the Hunza Textiles case (1999 SCMR 526): “[L]egislative entries should be given liberal and very wide interpretation and that the judicial approach in this regard should be dynamic rather than rigid.”

How did we arrive at this counter-intuitive situation? My research suggests that it was not because of any conscious design or serious deliberation. It was because of an inadvertent mistake that a court entrusted with jealously guarding provincial powers decided, instead, to read federal powers ‘liberally’.

In the Elahi Cotton case (1997) case, the court has been called upon to interpret an entry in the Federal Legislative List which allows the centre to levy for “taxes on income”. Income normally means actual income – the profits that remain after payment of expenses. In this case, the centre wanted to levy tax on ‘presumed income’. The court upheld this daring federal incursion by relying upon the “liberal interpretation” principle developed by Indian Court for interpreting legislative entries. Perhaps because the court was not well-assisted, the Court completely missed out on the vast difference between India’s constitutional context and ours, which make this transplant entirely unsuitable here.

The Indian Constitution, just the Government of India Act, 1935, has three legislative lists – federal, concurrent and provincial. Because there are three legislative lists, Indian judges have to fit everything under the sun under some entry or another. Every matter of human concern has to be categorized under one of the entries in any of the three lists; otherwise, no legislature would be able to make any law on that subject, nor would any governmental, central or provincial, be able to exercise power over it.

Initially, the situation was similar in Pakistan. The 1956 constitution also had three lists. However, things changed drastically in 1962 when the provincial list was abolished. From 1962 onward, we should have shifted to the concept of enumerated power developed by American courts because the US constitution also has only one list. What the Supreme Court failed to realize in the Elahi Cotton case is that in this new post-62 situation, giving a ‘liberal construction’ to the entries of the only remaining list (federal legislative list) would prove to be detrimental to the interests of the provinces.

It is an indication of the dearth of serious legal critique in the country that, almost a quarter century after Elahi Cotton, this fateful error has remained undetected. No one has pointed out how, in case after case, this out-context transplant from India has trumped the spirit of our federalist constitution. Most recently, the erroneous principle of ‘liberal interpretation’ was relied upon by the Sindh High Court to uphold a dubious federal tax on ‘deemed rental income’. One hopes that this basic jurisprudential error will be timely realized and corrected, before it does further damage to the constitutional compact so painfully arrived at in Pakistan.

The writer is a partner at The Law and Policy Chamber. He can be reached at:

umer.gilani@gmail.com