18th Amendment already dented by SC verdicts: experts

Many legal minds believe apex court’s various orders in last 10 years strengthened Centre

Hasnaat Malik April 28, 2020
Many legal minds believe apex court’s various orders in last 10 years strengthened Centre. REPRESENTATIONAL IMAGE

ISLAMABAD: Some political parties recently warned the federal government against diluting the 18th Constitutional Amendment after some news reports suggested that the government intended to change the 2010 amendment to the Constitution that gave greater autonomy to the provinces.

However, some legal experts believe that the apex court of the country in the past 10 years has already undone the 18th Amendment through various decisions that have strengthened the Centre.

Soon after the passage of the 18th constitutional amendment in 2010, a number of constitutional petitions were filed in the Supreme Court against the amendment.

Most of the petitions were against insertion of Article 175(A) of the Constitution wherein process of judges’ appointment was replaced and the Judicial Commission of Pakistan (JCP) was formed.

Taking up the petitions, a 17-judge full court led by former chief justice of Pakistan Iftikhar Chaudhry mainly focused on the process of judges appointments.

Interestingly, neither any serious petitioner except Adul Hafeez Pirzada adv challenged other aspects of the 18th Amendment nor the court was keen to examine other amendments in constitutional provisions.

Earlier, CJ Chaudhry in his judgment held that the federation could legislate on the subject of education.

In May 2017, the SC upheld the Sindh High Court’s (SHC) four year old order wherein it had declared that the Civil Aviation Authority (CAA) was not liable to pay sales tax to the Sindh government under the Sindh Sales Tax on Service Act 2011.

PML-N warns govt against fiddling with 18th amendment

Justice Qazi Faez Isa while authoring 47-page judgment held that the CAA performs functions in the federal legislative list and is also a federal regulatory authority.

“While the provincial legislatures are independent, they must operate within the sphere allotted to them and within their prescribed limit. Neither the federation nor the provinces should invade upon the rights of the other nor encroach on the other’s legislative domain,” Justice Isa said.

A senior lawyer believes that in view of this verdict, the provinces cannot impose sale taxes on the departments which are being run through federal law.

On March 28, 2018, a three-judge SC bench, headed by former CJ Mian Saqib Nisar, upheld the Industrial Relations Act (IRA) 2012 – sparking a debate regarding provincial autonomy.

Authoring the 54-page verdict, former CJ Nisar said matters relating to trade unions and labour disputes – having been dealt with and protected under international conventions – were covered under Entries Nos 3 and 32 of Part-I of the federal legislative list.

“Thus, the federal legislature has legislative competence to legislate in this regard,” it said, adding that the federation has competence to enact laws relating to the inter-provincial matters and co-ordination.

Expressing serious apprehensions over the impact of the SC’s recent verdict, one section of the lawyers said the judgment has undone the 18th constitutional amendment and provincial autonomy.

"It has largely undone the 18th constitutional amendment. Any matter that stretches beyond a single province now falls within the federal legislative domain. A super federal list has been created,” said a legal expert while requesting anonymity.

A three-judge bench, headed by CJ Mian Saqib Nisar and comprising Justice Umar Ata Bandial and Justice Ijazul Ahsan, on January 21, 2019 declared that “police is a concurrent subject” on which both the federal and provincial government could legislate.

"For securing integrity, competence, diligence in and accountability for police performance, the federation may consider framing a law setting out uniform criteria of appointment on sector cadre posts, their independence of operation, security of tenure, performance assessment and accountability of incompetence, negligence or dishonesty,” said the six-page order authored by future CJP Bandial.

Last year, a larger SC bench handed over the control of four medical hospitals to the federation while rejecting the Sindh government’s claim that it owned the hospitals after the passage of the 18th Constitutional Amendment.

Authoring the judgment Justice Ijazul Ahsan had declared that the 18th Constitutional Amendment did not prevent the federal government from opening healthcare facilities in any province of the country.

“The more one scrutinizes the argument that the federal government cannot set up and run hospitals in any of the provinces, the more unsustainable and flawed it becomes.

“Surely, the intention behind the 18th Amendment could not have been to prevent the federal government from opening healthcare facilities in any of the provinces, for concluding so would be tantamount to attributing absurdity to a constitutional provision, something which we are not prepared to do bearing in mind the well-known canons of statutory and constitutional interpretation,” he wrote.

Justice Baqar, a member of the bench who belongs to the Sindh province, had disagreed with the majority verdict and authored a three-page dissenting note dilating on significance of provincial autonomy. He had argued that a province’s autonomy could not even be encroached on unilaterally during emergency.

A Karachi-based lawyer Salahuddin Ahmed also disagreed with the majority judgment. “It basically says that federal government can act in any area where the question of fundamental rights of citizens is involved.

“Since nearly all legislative and executive acts pertain to one or another of the fundamental rights, this practically means that the Centre can act in any area and it practically nullifies the 18th Amendment,” he told The Express Tribune.

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