Governance in the light of the 18th Constitutional Amendment

Introduction

Pakistan as a country is faced with many challenges. One of the key challenges is of ‘governance’, the term which defies definition. For discussion, a working definition by the Canada-based Institute of Governance may be used here. It states:

“Governance is how society or groups within it, organize to make decisions.”

Based on this definition, the governance in Pakistan has been ‘organized’ by its society through the constitution. In 2016, in Mustafa Impex Case (Mustafa Impex Case-2016), the Supreme Court of Pakistan declared that the government governs not through the Prime Minister, but through the Cabinet. Since then, the governance mechanism and processes have been woven in and around the Cabinet. The federal and the provincial governments have virtually started organizing the decision-making at cabinet level, and the summaries are now prepared for collective decision-making instead of individualistic one. Akin to this species of cases, another case titled ‘Pakistan Medical and Dental Council versus Muhammad Fahad Malik’ (the PMDC Case-2018) has recently been decided having constitutional impact. The case is a study on how the Eighteenth Constitutional Amendment affects the governance and the constitutional architecture of the country. The brief conceptual details are being presented in a systemic manner:

1. Case Résumé

The Pakistan Medical and Dental Council (PMDC) is a statutory body that regulates the medical profession under the Pakistan Medical and Dental Council Ordinance, 1962. Under the law, it has power to introduce delegated legislation in the form of regulations. For some time, it was overseeing the admissions to the medical and dental colleges in the public sector by issuing the regulations. In 2016, through Regulations of 2016, it decided to regulate admissions in the private medical and dental colleges by its ‘Centralized Admission Programme’ (CAP). The Association of Private Medical and Dental Institutes (PAMI) challenged the Regulations of 2016 on, inter alia, the following grounds:

a. that it interfered with their fundamental right to trade/business/profession as enshrined in Article 18 of the Constitution of Pakistan;

b. that it was against the Eighteenth Constitutional Amendment which required that the devolved subject of education be legislated after seeking approval by the Council of Common Interests (CCI).

The challenge was successful in the Lahore High Court against which the PMDC filed an appeal in the Supreme Court of Pakistan (SCP).

2. The Judgement of the SCP

The Supreme Court decided the case in favour of the PMDC. The judgement was rendered by three-member bench that was headed by the then Chief Justice Mr Justice Saqib Nisar. The judgement answered over a dozen important constitutional points; gist of some of the points is as follows:

a. Role of the CCI

The judgement held that the CCI does not have unlimited role. This was in line with an earlier judgement of the Supreme Court (Pre-Eighteenth Amendment) in case titled Messers Gadoon Textile Mills versus WAPDA (Messers Gadoon Textile Mills Case-1998), wherein it held that:

“Articles 153, 154, 155, 160 and 161 provide an inbuilt self-adjudicatory and self-executory mechanism in the constitution setup – Council of Common Interests is not required to make decision as to the day-to-day working of the corporations…”

The Eighteenth Amendment tried to undo the effect of this observation in the Messers Gadoon Textile Mills Case-1998, but the instant judgement reintroduced the idea of confining the business of the CCI to only regulation, and not any further.

b. CCI and the Parliament

The judgement held that ‘the CCI does not have supervisory role over the functions of Parliament, since it is responsible to Parliament under the Constitution’. It was also held that ‘the Parliament, without any restriction or constraint, has absolute and unfettered authority to make laws with respect to the matters enumerated in the Federal Legislative List, without requiring any approval or assent from any forum or authority in the country, including CCI…’.

c. Temporary and Permanent Legislation

The judgement noted that ‘there is a clear distinction between a temporary enactment made by Parliament and an Ordinance promulgated by the President (or the Governor)’; ‘any amendment/insertion/introduction made by an Ordinance would not survive after its lapse/repeal. If, notwithstanding the fact that an Ordinance promulgated under Article 89 of the Constitution expires through efflux of time, the amendments made by it to a permanent statute, i.e. an Act of Parliament, are allowed to possess a permanent character, this will virtually amount to giving plenary power of making permanent legislation to the Executive’. It was also held that ‘the Ordinance making power under Article 89 (or Article 128) of the Constitution does not constitute the President (or the Governor) into a parallel source of law-making or an independent legislative authority. The power to promulgate Ordinances is subject to legislative control’.

d. Professional or Technical Training vs. Medical Profession

The categorization of Part I and Part II of the Federal Legislative List came under discussion in the case. While the PMDC argued that it was perfectly lawful for it to regulate the entry exams in private medical and dental colleges because ‘professional or technical training’ were at Entry 16 of Part I of the Federal Legislative List requiring no approval by the CCI, the PAMI argued that CCI’s approval was required as ‘medical profession’ was included in Entry 11 of Part II of the Federal Legislative List; the competing nature of the categories for legislation and approval of the CCI became a moot point for interpretation in the case. The Supreme Court endorsed the viewpoint of the PMDC and decided that the matter fell exclusively in the federal government’s domain.

Conclusion

Jurisprudence is a living science that gets its breath from human reasoning and societal diversity. The Eighteenth Constitutional Amendment and its interpretation by the Supreme Court of Pakistan will keep defining the relationship between the federation and the provinces along with empowering and disempowering institutions that may ultimately lead to an efficient and effective governance model that may serve the country in the best possible manner. The PMDC Case, may be viewed, as a transitory first step in that direction!

Council of Common Interests Constitution and Composition

The Council of Common Interests came into inception in the Constitution of Islamic Republic of Pakistan, 1973. Prior to March 4, 2010, Cabinet Division was the Secretariat of the Council of Common Interests (CCI) under the Rules of Business, 1973. In March, 2010, on a proposal of IPC Division, the Prime Minister ordered the transfer of “all secretarial work of the Council of Common Interests” from Cabinet Division to Inter-Provincial Coordination Division.

The Constitution and Composition of the Council of Common Interests (CCI) is provided under Article 153. In accordance with Article 153 (1) read with Article 154 (2), the President appoints the Council on the advice of the Prime Minister under Schedule V-B of the Rules of Business, 1973. The Council is responsible to both the Houses of Parliament i.e. Senate & National Assembly.

Current Members

Prime Minister of Pakistan is the ex-officio Chairman of the CCI. Its members include: Chief Ministers of Punjab, Sindh, Khyber Pakhtunkhwa and Balochistan, Minister for Finance, Revenue & Economic Affairs, Minister for Inter-Provincial Coordination and Minister for Industries and Production