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Interpreting the 18th Amendment

2 1 9
12.07.2018

Earlier this year, in Sui Southern Gas Limited v Federation of Pakistan, the Supreme Court dismissed a challenge to the constitutionality of the Industrial Relations Act, 2012 by holding that the law has been validly enacted by the federal legislature.

While the outcome may be correct, the interpretive rule laid down in the process of reaching the conclusion is a cause of great concern because it undermines the very spirit and purpose of the 18th Amendment.

For much of our history, the allocation of powers between the federal and provincial legislatures has been subject to the push and pull of centrifugal and centripetal forces, with the centre reluctant to cede any of its powers to the provinces. Demands for greater provincial autonomy were dismissed on the pretext that a strong federal government was needed to thwart the various internal and external threats facing Pakistan.

Therefore, legislative powers were divided using the federal and concurrent legislative lists. If a particular subject – say healthcare – was listed as an entry in the Federal Legislative List (FLL), then the federal legislature had the sole competence to legislate on it. However, if a subject was listed in the Concurrent Legislative List (CLL), then both the federal legislature and provincial legislatures enjoyed concurrent legislative powers. In the event of a conflict between the federal and provincial law, the former prevailed over the latter.

However, with the 18th Amendment being passed in 2010 the balance of power shifted in favour of the provinces. This has been achieved by abolishing the CLL, which has reduced the subjects on which the federal legislature can legislate. It can no longer override provincial legislatures by passing its own law because it does not have concurrent powers anymore. A subject can now fall in either the federal or the provincial domain but not in both at the same time. The federal legislature is thus, restricted to subjects listed in the FLL only. All residuary powers rest with the provinces.

The central issue in the Sui Southern Gas case was the division of power between the centre and provinces, ie which of the two legislatures had the competence to legislate on labour and trade unions. Prior to the 18th Amendment, this subject was listed as Entry No 26 and 27 of the CLL and it therefore, fell within the legislative competence of both the provincial and federal legislatures. However,........

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