FEDERAL/PROVINCIAL POWERS

The complicated nature of power sharing between the federal and pro­vincial tiers of government is described below in terms of the formula by which legislative powers are divided between them.

A. Legislative Powers

Through Article 141, the territorial bounds of legislative jurisdiction for the centre and provinces are established: the federal Assembly may make laws, including laws having extra-territorial jurisdiction, for the whole or any part of Pakistan. Provincial Assemblies are enabled to make laws for the whole or any part of a province.^[404] As units within a larger federation, provinces have more circumscribed territorial jurisdiction. On the other hand, there are no territorial limitations on laws made by the federal government and there are pockets of territory within provinces that are directly administered by the fed­eral government. For instance, the federal territory of Islamabad is geographically within the Province of Punjab but the laws of the province are of no effect within it.^[405] FATA is similarly situated within Khyber Pakhtunkhwa and ruled wholly through the FCR and federal government.^[406]

Subject matter jurisdiction has been carried over through a list system as first introduced in the 1935 Government of India Act. This system is the complicating feature of federal-provincial power sharing. Until the coming into force of the Eighteenth Amendment Act of 2010, Article 142 provided that there would be two specific subject matter lists, the federal and the concurrent and for the latter, both prov­inces and the federal government would have the power to legislate. In contrast to the minimalist list of six points that Mujib had suggested be retained with the federal government in the lead-up to the seces­sion of East Pakistan, the federal list as articulated in Schedule 4 to the 1973 Constitution was far more extensive, containing 111 subjects of exclusive federal legislative powers.

The concurrent list contained 47 subject matters and included law and order, education and health policy. Additionally, provincial Assem­blies, as well as holding legislative powers for items contained on the concurrent list, were vested with residual jurisdiction for subject matters falling outside of the federal and concurrent lists. The 1973 Constitu­tion had no provincial list per se. The very existence of the concurrent list was controversial in the making of the 1973 Constitution and it was anticipated then that the powers on the concurrent list would devolve to provincial competence within ten years. The Zia-ul-Haq coup of 1977 and the subsequent arrogations of power at the centre that fol­lowed in his reign are mostly blamed for the non-realisation of this aim. The Eighteenth Amendment, with some reservations, finally did away with the concurrent list in 2010. The impact of this will be discussed further below, after the following description of the ways in which both residual and concurrent jurisdiction were assessed by the courts prior to this alteration.

In a system that was conceived as one of cooperative federalism, the courts are accorded the formal role of settling conflict between these two tiers of government. In a far-reaching judicial statement, the powers of each tier were said to be constrained only to the extent that they must not violate or transgress upon the power of the other Assembly and must abide by other constitutional limitations, including fundamental rights guarantees.^[407] The first condition was made the basis of judicial arbitration both in reference to the overlapping jurisdiction established by the concurrent list and in gleaning the proper ambit of residuary jurisdiction falling to the provinces.

The adjudication of conflicts between centre and provinces for mat­ters on the concurrent list led in instances to the courts repeating the platitudinous sentiment that their respective powers are coextensive and equal.^[408] However, the substantive thrust of the greater number of judgments was in fact to uphold the supremacy of federal powers in the case of such conflicts.

As Article 143 provided for voidability in case of repugnancy, a broad array of situations have been described as sufficient for such a finding.^[409] Repugnancy can be found by inference in situations where obedience to one code could interfere with obedience to the other and also where the other can take away rights conferred by one code. Most elaborately, taking their cue from a long history of federalism case law in India, something akin to a doctrine of ‘occupied field’ informed the adjudication of conflicts about legislative power-sharing in Pakistan.^[410] Such a principle suggests that even where the federal law was not intended to be exhaustive, its existence within a specific field is suf­ficient to render the provincial statute within that field as repugnant.^[411] This is not without exception, however, and in other cases the need for actual conflict, particularly in reference to defining residuary jurisdic­tion for provinces, was necessitated.^[412]

In findings of repugnancy the remedies awarded have included the striking down of provincial statutes, their reading down or limitation of their application.^[413] Such a ‘plain reading’ of Article 143 was repeat­edly upheld in cases in the fields of labour and industrial relations in particular.^[414]

Given the interwoven nature of these realms, a great deal of conflict and thereby ample opportunity for courts to determine the jurisdiction of each rung of government arose.

In Elahi Cotton^[416] Justice Ajmal Mian defined interpretative principles for ascertaining the expanse of legislative competences implied by spe­cific subjects in legislative lists. Given the absence of a provincial list per se, this worked to expand the manoeuvre accorded to the Majlis- E-Shoora in reference to the federal list. By expounding the need for ‘liberal construction’, Mian was able to arrive at the ‘cardinal rule of interpretation’ that ‘each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it’. Given the precedential value of this case and others like it, it is easy to see how the field of provincial compe­tence might narrow.^[417] It is the record of such narrowing that has led in parts to an alteration and renewal in terms of the formal jurisdic­tional divides that the Eighteenth Amendment package of reforms promised.

B. Jurisdiction after the Eighteenth Amendment

After the Eighteenth Amendment, Article 142 now only provides that there will be a federal list, to be contained in the Fourth Schedule to the Constitution. Although the 47-item concurrent list was mostly done away with, the revised Article 142(b) in fact provides a set of areas, namely ‘criminal law, criminal procedure and evidence’ for which Parliament and the provincial Assemblies shall ‘both have power to make laws’. The current Article 142(c) provides that the proper domain for the exercise of provincial legislative powers is inclusive of all matters that are neither in the federal legislative list nor contained in Article 142(b). In this vein, there has been a significant devolution of powers to the provincial level. However, Article 143 remains unaltered and as a consequence, the possibility of the centre holding a trump to the provinces’ legislative actions remains.

A recent case at the Peshawar High Court illustrated, however, that the very act of abolishing the concurrent list has impacted the reason­ing of the courts so that such primacy is no longer a foregone con­clusion. This case tested the vires of a law against corruption-related offences by public officials in the province of Khyber Pakhtunkhwa.^[418] The federal government had itself reframed prior accountability and anti-corruption legislation to pass the National Accountability Ordi­nance in 1999. The petitioners sought nullification of the provincial statute on the basis that the federal law had ‘exhaustively covered the field of corruption and corrupt practices for all of Pakistan and impor­tantly, that the doctrine of occupied field was a necessary part of feder­alism case law in Pakistan.’ The court differed and held in fact that the scope of the occupied field doctrine had narrowed considerably after the abolition of the concurrent list. It could not be the measure of valid legislation promulgated under the authorisation of Article 142(b), the new ‘mini-concurrent list’. More stringent tests for repugnancy were needed to assess whether and to what extent provincial and federal laws for these subjects could be reconciled. The reasoning in this case could be a boon to those who have sought a way into cooperative federalism.

Nonetheless, the record of post-Eighteenth Amendment litigation suggests that broad areas of uncertainty persist. Still generating some significant litigation has been the domain of labour laws. Industrial relations and employment standards were both areas that had histori­cally been legislated upon by the federal government, but which were transferred to provincial competence after 2010. The two larger prov­inces, Sindh and Punjab, were quick to enact industrial relations legisla­tion and other labour legislation, whereas the smaller provinces faced a definite lag. The federal government also seized certain jurisdiction in passing an industrial relations statute to cover the federal territory of Islamabad as well as to regulate the creation and conduct of trade unions for industries located in two or more provinces.

The federal government’s actions were challenged at the Supreme Court in the 2011 Air League of PIAC Employees case. The court articu­lated something akin to a watertight compartmentalisation test to pro­tect the provincial prerogative to legislate against federal incursions.^[419] It did this on the back of Article 144, which was introduced in 2010. Article 144 provides that the federal government can legislate in a sub­ject area within the provincial legislative domain when expressly asked to do so by one or more provincial legislatures. While acknowledging that there are ‘institutions/corporations which have their branches all over the country’ and concomitantly that trade unions may wish to be registered at the national level in such institutions, thereby neces­sitating federal level legislation, the court under Chief Justice Iftikhar Muhammad Chaudhry sees a full solution presented in Article 144, thereby necessitating that provincial Assemblies request such action by the federal government.

A later case from the Karachi High Court differed, by seeing the passage by the national legislature of the Industrial Relations Act of 2012 as a necessary step to allowing workers to realise their Article 17-guaranteed fundamental right of association.^[420] The court accepted that the national legislature must necessarily step in to pro­vide a mechanism for this realisation where workers are employed by companies established in two or more provinces because fundamental rights cannot be abridged other than for enumerated reasons. The Court found further support for its determination in item 58 of the federal list, which reads ‘Matters which under the Constitution are

within the legislative competence of Majlis-e-Shoora (Parliament) or relate to the Federation.’ The court separated this specific mandate into parts, so that the words ‘relate to the federation’ were interpreted as being inclusive of all matters that it would be beyond the territorial bounds of a provincial legislature to enact laws for. Thus, the delimita­tion of the territorial jurisdiction of provincial legislative powers was made central to the reasoning in this case. Item 58 was presented as the panacea where provinces can only provide the enabling mechanism for the realisation of the right to association within their territorial borders and where, presumably, a uniformity of rights protection is neces­sitated in specific organisational or occupational fields beyond these borders.^[421]

The joining together of the expanse of fundamental rights guaran­tees and item 58 authorisation for federal action, if upheld at further appeal at the level of the Supreme Court will certainly do much to damage the effective devolution of legislative powers that were prom­ised under the Eighteenth Amendment. However, perhaps a greater problem with the division of legislative competence anticipated after the Eighteenth Amendment is the capacity shortfall that is being expe­rienced by provincial governments.

The fiscal burden of this transfer already indicates a resource lag owing to several design features of actually existing federalism in Pakistan. Taxation heads have increased for the provinces, but in a country where it is notoriously difficult to expand the tax base beyond those who are taxed at source, this means an added infrastructural cost to the provinces that is not currently being managed. A chief corollary of all this is that the smaller provinces have been unwilling or unable to legislate or define policy in many areas. In the areas of labour relations and management, health and education, Balochistan, KP and Sindh have shown a definite lag. In addition, the acquisitive federal bureau­cracy is unwilling to devolve ownership of some not insubstantial social welfare insurance schemes to the provinces for their management. As per a continuing history, the only province that was able to fully incorporate the changes and show compliance with the ‘demands’ that accompany devolution to the provinces is Punjab.

C. Federal Powers and the Executive

The distributions of executive powers in the federation are defined by Articles 97 and 137 of the Constitution. Article 97 provides that the executive authority of the federation ‘shall extend to the matters with respect to which the Majlis-e-Shoora has power to make laws. Article 137 mirrors this in providing that the executive authority of the provinces shall extend over those matters for which the provincial assemblies have power to make laws. It seems to be anticipated that the legisla­tive and executive authority of the various levels of government are coextensive.

Ever the pragmatists, however, the framers of the Constitution also included mechanisms for subjecting the provincial executive to the supremacy of the federal executive on several grounds. Article 148 provides the more circumspect direction that the executive authority of the province shall be exercised so as to secure compliance with federal laws. However, Article 149 confers greater powers upon the federal bureaucracy to provide directions to the provinces in a range of mat­ters. Included in them are any situations thought to be necessary so as not to ‘impede or prejudice’ the functioning of the federal executive. Additionally, Articles 149(b) and (c) provide for the federal executive to give directions to the provinces for establishing communication and transportation links in, as well as ‘for the purpose of preventing any grave menace to the peace or tranquility or economic life of Pakistan or any part thereof.’

The quid pro quo for these possible encroachments on provin­cial powers is the correlative ‘duty’ placed upon the federation in Article 148(c) ‘to protect every Province against external aggression and internal disturbances and to ensure that the Government of every Province is carried on in accordance with the provisions of the Con­stitution.’ Coupled with the powers of presidential dissolution under Article 234, this article has been the mechanism for the more overt central interference in provincial government, as discussed below.

While the drive towards a unitary consolidation of the executive function has been described in another chapter, the principles and formal guarantees of federal power-sharing have also had to co-exist in a persistent environment of tension. The retention of a fairly broad set of emergency powers provisions, as well as the maintenance of the office of the Governor as the centre’s representative at the provincial level have been amongst the means by which the unitariness of execu­tive rule has been felt in the furthest reaches of the federation.

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