Jurisprudence of the 18th Amendment to the Constitution of Pakistan

The constitution of a country constitutes its system; in this sense, the constitution, whether written or unwritten, assumes paramount significance. The experience of Pakistan in writing and adhering to its written constitutions has not been ideal. The subordination of state will to the written constitution has been a persistent challenge. Constitutionalism, therefore, has been a sine qua non for the rule of law in Pakistan. But, instead of infusing the constitutionalism, the constitutions of 1956 and 1962 were completely scrapped. The extant 1973 constitution survived, though it faced existential challenges. It was amended in two ways: first, by intra-constitutional mechanisms, and secondly, by extra-constitutional but judicially-sanctioned manner. Alternatively, the two ways can be seen as devices of elected and non-elected powers within the country. The Eighteenth Amendment to the Constitution of Pakistan belongs to the former species of the amendments and was characteristically cemented by the consent of the elected people. Having outlined the principles, it was supposed to be developed through intra-constitutional mechanisms of legislation, rule-making in the domain of delegated legislation and progressive interpretation by the judiciary. In this respect, the academic note of the intra-constitutional developments of the Eighteenth Amendment deserves to be recorded. This article will try to record, in series, some of the judgements of the Supreme Court of Pakistan that have interpreted the Eighteenth Amendment. Whether the adjudication has contributed to the constitutional system of Pakistan is a separate research question and may warrant qualitative and quantitative research.

1. Labour Laws: federal or provincial subject

The first judgement that will be summarised here is the case of M/S Sui Southern Gas Company Ltd versus the Federation of Pakistan rendered on 23rd March 2018. The case was heard by a three-member bench of the Supreme Court of Pakistan comprising Chief Justice Mian Saqib Nisar, Justice Mushir Alam and Justice Sajjad Ali Shah.

Brief conceptual facts are that the Eighteenth Amendment to the Constitution of Pakistan (2010) had repealed items 26 and 27 on Part II of the Federal Legislative List (hereinafter FLL). In view of the repeal, the federal legislature was, ex facie, considered not competent to legislate on the subject. Accordingly, all the four provinces enacted their laws related to labour matters (the Punjab Industrial Relations Act, 2010; the Balochistan Industrial Relations Act, 2010; the KPK Industrial Relations Ordinance, 2010 and the Industrial Relations (Revival and Amendment) Act, 2010 (for Sindh)). The matter was further complicated when the federal legislature enacted the Industrial Relations Act, 2012.

The precise question before the Supreme Court of Pakistan was to determine the scope of domain of the federal and provincial legislatures on the subject of labour laws. The Supreme Court found that all the five laws were sustainable save as the applicability of the laws: whereas the federal law was applicable to all the labour matters having extra-provincial impact, the provincial laws were applicable to the companies and organizations having presence in provincial territories. The reasoning has been provided in detail in the judgement. The reasoning is complex and can be critically analysed. However, main thematic lines of reasoning were:

First, that the federal legislature enjoyed extra-territorial powers and that the provincial legislature did not have extra-territorial legislative powers. The concept is powerful as it has transformed the criterion of law-making from subjects to territories;

Secondly, the Supreme Court employed textual strength from the constitution by referring to the internationalization of the labour matters through international treaties, conventions and agreements as provided in items 3 and 32 of the Part I of the FLL as shown in Schedule 4 of the constitution. Importing international legal obligations of Pakistan to provide legal basis of federal legislation is novel inasmuch as it is likely to spur new debate about the ability of the provinces to partake and participate in negotiations of international treaties at the time of committing to them. On the one hand, the foreign relations squarely fall within the domain of the federation, and on the other, the obligations undertaken at that level without inclusion of the provincial representation are likely to excite provinces to assert for a role in negotiations of treaties having effect on their respective domains/subjects.

Thirdly, insofar as the protection of the rights of labourers through trade unions and their justiciability through the National Industrial Relations Commission (NIRC) are concerned, the judgement may be credited of providing a singular national platform to guarantee implementation of its international obligations. On the other hand, the provinces may see it as zero-sum game for the loss of the revenues/funds expected from large organizations in lieu of workers welfare fund and other schemes.

2. Police Laws: federal or provincial subject

The case of Mr A.D. Khawaja, the Inspector General of Police, Sindh, brought to the fore the question of constitutionality of the police laws in the country. The case was titled as the Chief Secretary of Sindh versus Shehri Citizens for a Better Environment etc and was heard by a three-member bench of the Supreme Court of Pakistan headed by the Chief Justice Mian Saqib Nisar. Its other members were Justice Umar Atta Bandial and Justice Ijaz-ul-Ahsan. The order was passed on 22nd March 2018 and its detailed judgement containing reasons is yet to follow. It, in effect, endorsed the judgement of the Sindh High Court authored by Justices Munir Akhtar and Arshad Hussain Khan and delivered in 2017.

As background to the case, it may be noted that the police are considered a component of the criminal justice system in Pakistan. On the basis of established practice, however, in the name of ‘law and order’, the system of criminal justice is treated as a provincial subject. Accordingly, the police, prosecution, forensic science, jail/prison, corrections and reclamation services are provincially organized; the provincial organization of these services has given role to the provincial governments in appointment of the heads of these organizations save as heads of police organizations who get appointed by the concurrence of the federal government. Since independence, the law relating to police has been the Police Act, 1861. The law was repealed in 2002 by the promulgation of the Police Order, 2002, which was provided temporal protection through the Seventeenth Amendment to the Constitution of Pakistan. The temporal protection came to an end in 2009, and later, in the year 2010, the Eighteenth Amendment to the Constitution of Pakistan was passed, abolishing the Concurrent Legislative List (CLL).

Besides abolishing the CLL, which covered the items of ‘criminal law, criminal procedure and evidence’, it created a new legislative field by transferring the aforesaid abolished items of the CLL to a new article 142(b). In this new legislative milieu, the provincial legislatures promulgated their own police laws: The Sindh (Repeal of the Police Order, 2002, and Revival of the Police Act, 1861) Act, 2011, the KPK Police Act, 2017, and the Balochistan Police Act, 2011. The Police Order, 2002, was retained by the Punjab, but by treating it as a provincial law and amending it in 2013 and 2017. All these provincial police laws, including the erstwhile The Police Act, 1861, were essentially organizational laws and only provided the legal basis of ‘police organization’; contrarily, the ‘policing’ powers of arrest, registration of cases, search, etc. relating to criminal procedure were always derived from the Code of Criminal Procedure, 1898.

In this environment, the Government of Sindh tried to remove Mr A. D. Khawaja who was working as the IGP Sindh. The Shehri – Citizens for a Better Environment filed a writ petition in the Sindh High Court that initially stayed the removal of the IGP and later passed a judgement in his favour providing him a tenure of three years based on the Sindh Rules of Business, 1986, wherein tenure of BS-21 was protected. The judgement authored by Justice Munib Akhtar was detailed, spanning over ninety pages. Amongst other issues, it decided the constitutionality of the police laws in favour of the provinces.

The reasoning employed by the judgement is interesting as the definitions of ‘criminal law’ and ‘criminal procedure’ were at the heart of discussion. The retired police officers like Dr Shoaib Suddle wanted to plead the case before the Supreme Court of Pakistan to argue the role of federation in provincial police organizations, but he was not allowed to become party to the case. With the endorsement of the Supreme Court of Pakistan, the matter has been decided in favour of provinces for now. The constitutionality of the police organization, as against the function of policing, is likely to revert to the Supreme Court of Pakistan as the spread of criminal law and its procedure is yet to be determined; by one definition, the National Accountability Bureau Ordinance, 1999, is also a criminal law and its procedure is also of similar nature. If the same logic insofar as legislative competence of provincial legislatures vis-à-vis criminal law and criminal procedure is applied to accountability law, it may also be reduced to provincial laws. The judgement also discussed in detail the structural changes in legislative fields in successive constitutions of Pakistan. Tracing the history of legislative lists in the constitutional documents, it highlighted how the legislative item was initially part of the list and since 1973 it has been subsumed in the items of the criminal law, criminal procedure and evidence.

The comparative view, as noted in the judgement, is tabulated here:

The subject of role of policing in the federation is also important in view of the supremacy of civilians as envisaged in the constitution, and as the mandate of the internal security, legally speaking, falls in the civilian domain; the reasons for upholding the judgement of the Sindh High Court may further address some of the issues discussed above.