The 18th Amendment and the Supreme Court

The Supreme Court is not the sole arbiter on the meaning of the Constitution and neither should it be. While it is the final forum for adjudication, it is not infallible.

There are many instances throughout history of parliament overriding decisions of Supreme Courts on matters of constitutional interpretation. In Pakistan, additions made to Article 6 by the 18^th Amendment eliminated the jurisprudence of the ‘doctrine of necessity’. In the United States, the 13^th Amendment negated the effect of the SC’s judgment in Dred Scott v Sanders (1857).

Constitutional interpretation is just as much an exercise for parliament as it is for the judiciary. Parliament should step in to clarify constitutional meaning when the SC gets things wrong. This is perhaps what our parliament needs to consider to rectify successive decisions of the SC that have eroded the substance of the 18^th Amendment.

The 18^th Amendment is criticised for never being implemented. Politicians bear the brunt of this criticism. While they deserve blame for certain aspects (such as the apathy towards implementing an effective local government system), the SC has not helped the implementation process either.

Prior to the 18^th Amendment, the Constitution had two legislative lists: the Federal and the Concurrent. The former defined the subjects over which the federation had power to legislate. The latter related to matters over which both the provinces and the federation could. The 18^th abolished the Concurrent list, and limited the federation’s power over only those subjects given in the 4^th schedule of the Constitution. Everything else was the exclusive domain of the provincial governments.

In Sindh v Nadeem Rizvi (2019), the SC razed this understanding. Healthcare is a provincial subject, yet the Court held that multiple hospitals in Sindh and Punjab should have their control transferred to the Centre.

The Court read entry 37 of the 4^th schedule as a justification for its decision to declare the transfer of hospitals to the provinces as illegal. However, entry 37 deals with the power to undertake projects and “works” for the purposes of the federation. What falls within a “purpose of the Federation” has to be found within the 4^th schedule which is silent regarding hospitals and healthcare. Neither is the Court’s reference to entry 16 convincing, which talks about specialised study — not hospitals.

In coming to its decision the SC overlooked the fact that since the Government of India Act of 1935, healthcare has been within the exclusive control of the provinces.

Not content with stopping there, the Court held that because healthcare fell within the ‘right to life’ under the Constitution, the federation could not be excluded from legislating upon it. The argument was that the federation was responsible for implementing the right to life, therefore, it had to have a stake in legislation.

The problem with this reasoning is that our courts have interpreted the ‘right to life’ so expansively that everything under the sun comes within its umbrella, giving the federation limitless power to encroach upon countless subjects that fall within the provincial domain.

Plus, let’s not forget that the federation does not have sole responsibility to protect the ‘right to life’. The provinces are equally responsible. In fact, the protection of fundamental rights is an obligation upon both the Centre and the provinces. When a provincial action violates fundamental rights, lawyers file claims against the provinces — not the federation.

Then there is the decision in Sindh Revenue Board v Civil Aviation Authority (2017). The SC held that despite the repeal of the Concurrent list, the federation could still legislate on the subjects that had been contained in it as long as “it came within the purview of the Federal Legislative List or was incidental or ancillary thereto”.

It defies principles of constitutional interpretation to assume that the drafters of the 18^th Amendment still wanted the spectre of the Concurrent list to haunt the Constitution like Banquo’s ghost.

Furthermore, the SC tied its decision to an uninhibited interpretation of what is meant by ‘incidental or ancillary’, giving the federation carte blanche power. Anything, after all, can be incidental or ancillary to a federal subject if you are creative enough.

Similar expansive power was given to the federation by the SC in Sui Southern Gas v Federation of Pakistan (2018). Here, the SC relied on precedent that preceded the 18^th Amendment to hold that the provisions of the Federal Legislative list are to be given their widest possible meaning. It then held that if the federation had entered into an international treaty on a subject — regardless of whether that subject was a provincial one — it could legislate on it.

But there are many international treaties that the federation has entered into before the 18^th Amendment even came about. To use those to justify federal power makes no sense in a post-18^th Amendment world. Context matters in constitutional interpretation. Which brings us to the Council of Common Interest (CCI) which was, prior to the 18^th Amendment, little more than window dressing. Providing the illusion of provincial consensus while the Centre took unilateral decisions. The 18^th Amendment, in an attempt to rectify this situation, specified certain matters that would require CCI approval before the federation could take decisions on them.

This provision was not spared by the SC either. Decisions related to the medical profession require CCI approval as per the 18^th Amendment. Yet, in PMDC v Fahad Malik (2018), it was decided that the PMDC did not need CCI approval before making decisions such as framing new regulations. To come to this conclusion the Court ignored, again, the explicit text of the Constitution.

As for local governments, anyone who feels their absence in our country should read the judgment in LDA v Imrana Tiwana (2015), which diluted Article 140A of the Constitution so that Lahore’s signal-free corridor could be built despite local government being excluded from the decision-making process.

These decisions show how the 18^th Amendment’s implementation has been gutted by the SC through the use of reasoning that is hard to square with the intent of those who drafted it. Judges are supposed to interpret the Constitution with an eye on parliamentary intent — none of these decisions took that into consideration. Furthermore, all these decisions make references to precedent that came before the 18^th Amendment to come to their respective conclusions.

The judiciary continues to prefer, regardless of parliamentary intent, an old centralised model. The model that the 18^th Amendment wanted to expunge from the Constitution. In doing so, it is creating a jurisprudence at odds with the document they are tasked with protecting. Either the judiciary must correct its course or parliament must step in before there is nothing left of the 18^th Amendment to save.

Published in The Express Tribune, May 19^th, 2020.

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