Part I
The News, March 22, 2010

The Parliamentary Committee on Constitutional Reform is reported to be very close to completing its task and is expected to submit its report later this week. This news has been widely welcomed because it has raised the expectation that the powers transferred to the president under the Musharraf dictatorship will soon be restored to the prime minister and the country will have a true parliamentary system of government as the national consensus demands. Regrettably, however, the committee’s performance on the whole leaves much to be desired and although it took upon itself the job of carrying out a comprehensive review of the constitution – without having received any such mandate from parliament – it adopted a highly selective approach in picking and choosing what needed its attention and failed to take up some badly needed reforms.

Our MNAs and MPAs will no doubt sleep more peacefully in future as they would not have to worry about being sent home under a presidential decree in the middle of their term and would be able to enjoy a full period of five years irrespective of their performance. But the repeal of Article 58-2-b will also be a step fraught with risks because it will eliminate a much-needed safety valve that the country needs to cope with future political crises. It would be better if instead of completely doing away with the president’s power to dissolve the assemblies, it was retained but placed under stringent political checks. Since that is not likely to happen, the least parliament should do now is to reduce the term of the assemblies to four years. Having to face the electorate a little earlier would have at least some salutary effect on the wayward behavior of our elected representatives.

Our members of parliament talk unendingly of “parliamentary sovereignty” but they take little interest in the main job of a parliament, which is to pass laws. As a result, much of the legislative work is left to the executive branch through ordinances, a practice which also makes nonsense of the principle of separation of powers. All bad laws, like the NRO, the Islamabad Defence Housing Authority (DHA) Ordinance and the ordinance for the establishment of mobile courts for summary trials which Zardari signed into law shortly before last year’s long march, are promulgated as ordinances.

Once an ordinance has been issued, it immediately creates certain rights and interests which parliament is then very reluctant to undo, even though it has the constitutional power to do so. It is therefore very rare that an ordinance is repealed. Most ordinances are promulgated repeatedly until they receive parliamentary approval. All parliament does is some tinkering. This has effectively resulted in the usurpation of legislative power by the executive branch.

All that needs to be done to give full legislative authority to parliament is to repeal the ordinance-making powers of the government under articles 89 and 128, except when an assembly stands dissolved. It is regrettable that this proposal received no attention from the wise men of the committee.

Another outstanding issue left open by the committee is the procedure for appointments to the superior judiciary. By opening its proposals on this subject for public debate before the conclusion of its work, the committee acknowledged that those who have been critical of the idea of associating members of parliament with the appointment of judges have a point. The dominant view is that if we want an independent and apolitical judiciary, the members of parliament must be excluded from the appointment process. The present system of leaving judicial appointments to the chief justice and the executive head of the country, with the former having the final say, is essentially sound. But it could be improved by associating the senior-most judges with the chief justice to provide for collective decision-making at the selection stage.

By far the most far-reaching of the recommendations of the committee is the proposal for the abolition of the concurrent list. Other proposals, like the deletion of Article 58-2-b and the withdrawal of the president’s power to make appointments to senior posts, will change the way the country is governed. But the elimination of the concurrent list goes much farther because it will fundamentally alter the very character of the state. Astonishingly, there has been little discussion – in the government, parliament, the committee, the media, or the political parties – of what this sweeping step will entail.

The least the committee should have done, since it is composed of professional politicians not legal experts, is to have sought the opinion of the Law Ministry or of other experts on constitutional law to educate itself on what the abolition of the concurrent list will mean for the legal system of the country. The committee’s failure to do so is nothing less than a culpable betrayal of the nation’s trust. By their silence on this vital issue, Gilani, the current prime minister, and Nawaz Sharif, the leader of the second largest party in the country and the leading aspirant and contender for that post, have also shown a similar incapacity to grasp the potential consequences of abolishing the concurrent list.

The debate – or the absence of it – over the question of provincial autonomy has been clouded by three huge myths. Myth number one: the promise to eliminate the concurrent list was contained in the original 1973 Constitution. Myth number two: since the promise to delete the concurrent list has been made in the Charter of Democracy, the issue cannot be discussed any further. Myth number three: abolition of the concurrent list equals greater provincial autonomy. All these myths are false and they are dangerous.

There was no commitment in the 1973 Constitution to eliminate the concurrent list after some time. Those who make this claim have either not bothered to read the Constitution as originally adopted or they are deliberately distorting the truth. It is shocking how this myth has gained such wide currency without having been seriously challenged. It has been assiduously promoted by one of our star TV political commentators who also edits a Lahore weekly. In an editorial the weekly he suggested a one-line amendment restoring the Constitution as it was at the time of Zia’s coup in 1977 as a way of taking the country out of the “judicial, political and constitutional quagmire” it faces. He argued that doing so would “empower the provinces because it will spell the end of the concurrent list.” The writer is either party to a disinformation campaign or he is exceedingly ill-informed. For one thing, a one-line amendment restoring the Constitution as it was thirty-three years ago would, far from ending the current tangle, only enmesh the country in endless new legal problems and complications. More important, it will not eliminate the concurrent list, because there was never any use-by date attached to it.

The debates in the National Assembly at the time the Constitution was being drafted also contain no record of a commitment to abolish the concurrent list. A senior member of the committee who was involved in the drafting of the original constitution has confirmed that this issue did not figure in the preparatory work. We do not even know if any such promise was made privately by ZAB. Even if it was, that was a personal commitment between individuals. It is hardly relevant to the current political issues which must be settled by the present political leadership in the light of the present situation.

PART II
The News, 25 March 2010

It is true that Benazir and Nawaz Sharif agreed in the Charter of Democracy to eliminate the concurrent list. But that is no reason why the members of the committee and parliament should blindly try to implement this commitment and not apply their own minds. The charter was drafted in great haste by one individual, a prominent PPP lawyer who was later excluded from the party’s higher councils for supporting the restoration of the chief justice and has since returned to the party’s fold. The result of his labours was a hurriedly prepared list of political demands bearing the grand title of Charter of Democracy. The two leaders, then in exile, who signed it were under great pressure to produce a political declaration challenging the Musharraf dictatorship and had neither the time nor the inclination to study its finer points. The charter is not a sacrosanct document and several hare-brained proposals made in it, like the establishment of a constitutional court and a truth and reconciliation commission, have wisely been thrown into the dustbin without any tear being shed.

The claim that the abolition of the concurrent list will give more powers to the provinces is false. They already have the power to legislate on subjects in this list, which they share with the federation, and will not get any additional powers as a result of its deletion. The demand for provincial autonomy is no doubt legitimate. In the past, the rights of the provinces were trampled upon because of their merger into one unit (1955-1971) and because during the long periods of military rule the country was governed practically as a unitary state. Moreover, the Ayub constitution (1962-69) was federal only in name. Now that the country has been put on the constitutional track, a very large measure of provincial autonomy has been restored. If the provinces want more, we should look separately at each item in the federal and concurrent list, rather than completely abolishing the latter.

The present Concurrent List actually consists of two types of subjects, although they are not separately categorised as they were under the Government of India Act of 1935 and the Constitution of 1956. The first type (placed in Part I of the concurrent list in the 1935 Act and the 1956 Constitution) comprises not concrete subjects but rather various branches of civil and criminal law, substantive and procedural, and includes the Pakistan Penal Code, the Criminal Procedure Code, the Civil Procedure Code, the law of evidence, family laws and various other subdivisions of civil and criminal law. Both the federation and the provinces can legislate on these matters and under Article 143 the federal law prevails over a provincial law in case of inconsistency between the two.

The second type (placed in Part II of the concurrent list in the 1935 Act and the 1956 Constitution) is composed of concrete subjects over which both the federation and the provinces can legislate. The rationale for including them in the concurrent list is that these are matters (like drugs and medicines, environmental pollution, labour welfare and the regulation of the legal, medical and other professions) which can only be dealt with effectively through coordinated action at the federal level.

The deletion of the concurrent list will have two major consequences:

First, parliament will forfeit all powers to legislate in the field of civil and criminal law. The country will soon have not one but four Penal Codes and the same number of Criminal Procedure Codes, Civil Procedure Codes, laws of evidence, family laws etc., one for each province. Similarly, there will have to be not one federal law on accountability of holders of public office but four provincial laws on this subject. Some of the provinces might not even have such a law. That might be a blessing for the corrupt politician, who will find it much easier to evade justice, but would hardly be in interest of clean government. There will also have to be four provincial anti-money laundering laws instead of one for the whole country. The powers of the FIA will be limited largely to investigating breaches of immigration, quarantine, copyright and currency laws. Such examples could go on and on. The single legal space that the country has had for the last century and a half would be a thing of the past. Instead, there will be four provincial legal regimes of uneven quality.

Second, there will have to be four separate provincial laws instead of one federal law to protect the environment and to check the sale of spurious and harmful drugs, to give just two examples. That will make enforcement difficult, because the province with the least stringent laws or no law would become the haven for law-breakers or evaders. Similarly, since each province will set separate standards for workers’ welfare, the province with the most lax labour legislation would attract industrial investment. That would be a boon for the rich industrialist but a bane for the poor worker. Furthermore, since each province will regulate the different professions, a lawyer, doctor, accountant or teacher from one province, who wants to practise in another, will have to meet the qualifications and other requirements, such as registration, of that province as well.

Following a TV discussion on 15 March in which the consequences of eliminating the concurrent list were pointed out to two members of the committee, it seems that it has finally woken up to the full implications of a blanket repeal of the list and is trying to find ways of mitigating the damage. There are reports that the committee is now discussing a proposal to put five subjects presently in the concurrent list – including the Criminal Procedure Code, the Pakistan Penal Code and the Evidence Act – in part II of the federal list that comes under the preview of the Council of Common Interests (CCI). That means that policy will be formulated in the council but only the federal parliament will have the power to pass laws on these subjects.

This proposal too suffers from two major flaws:

First, although the provinces will participate in the CCI in formulating a national policy on these subjects, they will lose the power which they currently have, concurrently with the federation, to legislate in those areas. That means fewer powers for the provinces, not more.

Second, it seems that the five subjects which the committee is now considering transferring to Part II of the federal list all deal with criminal law. That means that in civil law matters (such as family law, civil procedure, the structure and jurisdiction of the courts etc. including the high courts), the federal Parliament will lose all legislative powers.

The problem is that the committee has become a slave to political slogans. Instead of looking rationally at each item of the concurrent list on its merits, its members are blindly trying to implement the CoD’s commitment to delete the entire list, whatever the consequences. The question we should really be addressing is whether we want a single legal space for the whole country or four different legal regimes, one for each province. Similarly, we need to debate whether or not we want uniform laws on such matters as the control of medicines, protection of workers, environmental protection, the regulation of professions etc. The opaqueness of the proceedings in the Committee has so far stifled this discussion.

If we do not want a single legal space for the country or common standards for these matters, or if we want a federation that has no powers to legislate on criminal and civil law, then by all means we should eliminate the concurrent list. But we should first debate the issues openly and extensively and without any artificial deadlines. If that means delaying the repeal of the 17th Amendment, then so be it. These are far more important matters for the state than the power to appoint the army chief or the chief election commissioner.

If, following this debate, we find that we need to retain the concurrent list, with or without modifications, we could divide it into two parts. One part could consist of items on which the federal legislation prevails over the provincial legislation, while the second part could comprise those on which the provincial laws prevail. This should allow greater diversity as well as uniformity, while satisfying the just demand for enhanced provincial autonomy.

(Concluded)

The writer is a former member of the Pakistan Foreign Service. Email: [email protected]

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