Interpreting the 18th Amendment

Earlier this year, in Sui Southern Gas Limited v Federation of Pakistan, the Supreme Court dismissed a challenge to the constitutionality of the Industrial Relations Act, 2012 by holding that the law has been validly enacted by the federal legislature.

While the outcome may be correct, the interpretive rule laid down in the process of reaching the conclusion is a cause of great concern because it undermines the very spirit and purpose of the 18th Amendment.

For much of our history, the allocation of powers between the federal and provincial legislatures has been subject to the push and pull of centrifugal and centripetal forces, with the centre reluctant to cede any of its powers to the provinces. Demands for greater provincial autonomy were dismissed on the pretext that a strong federal government was needed to thwart the various internal and external threats facing Pakistan.

Therefore, legislative powers were divided using the federal and concurrent legislative lists. If a particular subject – say healthcare – was listed as an entry in the Federal Legislative List (FLL), then the federal legislature had the sole competence to legislate on it. However, if a subject was listed in the Concurrent Legislative List (CLL), then both the federal legislature and provincial legislatures enjoyed concurrent legislative powers. In the event of a conflict between the federal and provincial law, the former prevailed over the latter.

However, with the 18th Amendment being passed in 2010 the balance of power shifted in favour of the provinces. This has been achieved by abolishing the CLL, which has reduced the subjects on which the federal legislature can legislate. It can no longer override provincial legislatures by passing its own law because it does not have concurrent powers anymore. A subject can now fall in either the federal or the provincial domain but not in both at the same time. The federal legislature is thus, restricted to subjects listed in the FLL only. All residuary powers rest with the provinces.

The central issue in the Sui Southern Gas case was the division of power between the centre and provinces, ie which of the two legislatures had the competence to legislate on labour and trade unions. Prior to the 18th Amendment, this subject was listed as Entry No 26 and 27 of the CLL and it therefore, fell within the legislative competence of both the provincial and federal legislatures. However, after the abolishment of the CLL the subject stood devolved to the provinces.

The dispute arose when the federal legislature enacted the Industrial Relations Act, 2012, to regulate trans-provincial labour disputes and the formation of trade unions across provincial lines. The question before the Supreme Court was whether this was a valid piece of legislation considering that the subject of labour and the formation of trade unions had been devolved to the provinces? The SC answered in the affirmative. The SC maintained that under the constitution a province cannot legislate extra-territorially, and where a company operates across provincial lines and employs people in more than one province, its labour and industrial relations can only be regulated by a law enacted by the federal legislature.

While the outcome can be debated separately, the interpretive rule laid down in the process of reaching the decision is worrying, for it will have a significant impact on how the 18th Amendment is interpreted. After reviewing a string of cases from India and Pakistan, the court has ruled that an “Entry in a Legislative List should be given its widest possible meaning.” The problem is that the cases on which the court has relied to deduce this rule belong to a different historical setting.

For instance, the Pakistani cases to which the SC refers are from the pre-18th Amendment era. Back then, an expansive interpretation of the FLL and the CLL made sense because the idea was to retain a strong and a powerful centre. The more liberally and expansively these entries were construed, the less there was left for the provinces to legislate on.

But after the 18th Amendment, this rule is not in sync with the trajectory of our constitutional history anymore. The very spirit of the 18th Amendment is to empower the provinces by giving them some of what was previously with the centre. If the entries in the FLL continue to be interpreted expansively and liberally – as the Supreme Court observes – then the centre will be able to claw back some of the powers devolved to the provinces. After all, the more expansively you read an entry in the FLL, the more space you provide to the federal legislature.

Therefore, respecting the 18th Amendment requires that a different interpretive rule be adopted under which entries in the FLL are read more restrictively. Any rule to the contrary would compromise the spirit of the 18th Amendment.

The writer is a Lahore–based lawyer.

Email: b.soofi@gmail.com

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