It evaluates impact of 18th Amendment in the Constitution of Pakistan, 1973

1. -by
Barrister Shahida Jamil
Former Federal Minister for Law, Justice and Human Rights

2. SCOPE
 Changes by 18th. Amendment
DYNAMICS
 Analysis of consequences of
18th. & 19th. Amendment
 CHALLENGES

3. The question is :Has it moved towards
Federalism…
or
Confederalism?

4. Confederal Federal Unitary
Foreign Affairs Foreign Affairs Foreign Affairs
Currency Currency Currency
Defence Defence Defence
Finance Finance
Taxation Taxation
- Many others All powers
Except
Local Govt.

5. but who should have it”
John Locke (The Two Treatises of Government”
S.106)

6. That power should be
a check to power.”

7. We have been broken in 1971 –
In other words
there is a negative force
..in the region…

8. WRONG….
We must be careful…..

9. Or
Have we just abolished powers at the
Centre with no proper checks -
(Emergency Powers are not the same
as Residuary Powers - the powers
of Eminent Domain)

10. What is the SCOPE?
i.e. To work within the powers and rules
allowed by the Constitution as now in force -
ULTRA VIRES ULTRA VIRES
INTRA
VIRES

11. 1. Before
18th. Amendment’s scope:
Article 63(2)

12.  (2)If any question arises whether a member of
Majlis-e-Shoora (Parliament) has become disqualified
from being a member, the Speaker or, as the case
may be, the Chairman shall, unless he decides that no
such question has arisen, refer the question to the
Election Commission within thirty days and should he
fail to do so within the aforesaid period it shall be
deemed to have been referred to the Election
Comission.
 (3)The Election Commission shall decide the question
within ninety days from its receipt or deemed to have
been received and if it is of the opinion that the
member has become disqualified, he shall cease to
be a member and his seat shall become vacant.]

13.  For the reasons to be recorded later, the accused Syed
Yousuf Raza Gilani, Prime Minister of Pakistan/Chief
Executive of the federation, is found guilty of and
convicted for contempt of court, under Article 204 (2)
of the Constitution of the Islamic Republic of Pakistan,
1973, read with Section 3 of the Contempt of Court
Ordinance (Ordinance 5 of 2003) for wilful flouting,
disregard and disobedience of this court’s direction
contained in paragraph number 178 of the judgment
delivered in the case of Dr Mubashir Hasan versus the
Federation of Pakistan (PLD 2010 SC 265). After our
satisfaction that the contempt committed by him is
substantially detrimental to the administration of justice
and tends to bring this court and the judiciary of this
country into ridicule.

14.  2. As regards the sentence to be passed against
the convict, we note that the findings and the
conviction for contempt of court recorded above
are likely to entail some serious consequences in
terms of Article 63 (1) (g) of the Constitution
which may be treated as mitigating factors
towards the sentence to be passed against him.
He is, therefore, punished under Article 5 of the
contempt of court ordinance (ordinance 5 of
2003) with imprisonment till the rising of the
court today.
DEADLOCK COMING?

15.  “213 (1) : There shall be a Chief Election
Commissioner (in this part referred to as the
Commissioner) who shall be appointed by the
President (in his discretion).”
Scope changed:
 18th. Amendment removes “in his discretion”
– so now President under advice of PM – so
PM appoints…

16.  Article 213 (2A) and (2B) of the Constitution
which says: “The Prime Minister shall in
consultation with the Leader of the
Opposition in the National Assembly, forward
three names for appointment of the
Commissioner to a Parliamentary Committee
for hearing and confirmation of any one
person.

17.  (2B) The Parliamentary Committee to be
constituted by the Speaker shall comprise
fifty percent members from the Treasury
Branches and fifty percent from the
Opposition Parties, based on their strength in
Majlise- Shoora (Parliament), to be nominated
by the respective Parliamentary Leaders:

18.  Provided that in case there is no consensus
between the Prime Minister and the Leader of
the Opposition, each shall forward separate
lists to the Parliamentary Committee for
consideration which may confirm any one
name: Provided further that the total strength
of the Parliamentary Committee shall be
twelve members out of which one-third shall
be from the Senate.”
Deadlock coming?

19. Abolishes the Concurrent List:
1[70. Introduction and passing of Bills.---
(1) A Bill with respect to any matter in the
Federal Legislative List (………) may originate
in either House and shall, if it is passed by
the House in which it originated, be
transmitted to the other House; and, if the Bill
is passed without amendment by the other
House also, it shall be presented to the
President for assent.

20. And…
• 142. Subject-matter of Federal and Provincial laws.—Subject to the
Constitution—
• (a) 1[Majlis-e-Shoora (Parliament)] shall have exclusive power to make laws with
respect to any matter in the Federal Legislative List;
• 2[(b) Majlis-e-Shoora (Parliament) and a Provincial Assembly
shall have power to make laws with respect to criminal law,
criminal procedure and evidence.]
(but not Civil Law – all investment issues now
with the provinces – LIKE USA in 1776)
• 3[(c) Subject to paragraph (b), a Provincial Assembly shall,
and Majlis-e-Shoora (Parliament) shall not, have power to
make laws with respect to any matter not enumerated in the
Federal Legislative List.]
• 4[(d) Majlis-e-Shoora (Parliament) shall have exclusive power to make
laws with respect to all matters pertaining to such areas in the
Federation as are not included in any Province.]

21. BEFORE 18TH. AMENDMENT - Concurrent List –
Directly under The Parliament
(342 persons + 104 in Senate):
• Criminal Law and Criminal Procedure
• Civil Law and Civil Procedure
• Evidence and oath
• Marriage, Divorce and infants and minors; adoption
• Wills, intestacy
• Arbitration
• Contracts…
• Trusts & Trusteeships..
• Partnerships, agency, contracts of carriage
• Measures to combat certain offences and establishment of
a police force for the purpose (FIA, etc)
• ETC.

22. NOW the mechanisms work under the new
framework..
Federal Legislative List - Part – II
Under Council of Common Interest – (politicized)
1.Boilers
2.Capital Gains Tax
3.Electricity
4.Major Ports – declaration and delimitation and constitutions and powers of port
authorities;
5.Regulatory authorities
6.National Planning
7.Public Debt
8.Census
9.Extension of jurisdiction of provincial police
10.Legal, medical and other professions
11.Standards – in higher education and research & scientific and technical institutions
Inter-provincial matters and co-ordination.
No Civil or Corporate Law or Civil Procedure
(trade and other civil matters are now part of the Provinces)

23. Part – II
Under Council of Common Interest
• 14. Evidence & Oath (HASBA? And non-HASBA?)
• 15 Marriage, Divorce, infants and minors, adoption
(Sectarian?)
• 16 Wills, intestacy and succession –
except agricultural lands (with provinces!)
• 17 Bankruptcy, insolvency, administrators-general and
Trustees (Charitable Foundations)
• 19. Arbitration. (Dead-end for international investment)

24.  Uniformity of major laws and
standardization of rules (eg. weights
and measures cannot vary)– for every
citizen of the country…and for the
ECONOMY..
No more…..
Now each Provincial Assembly will
decide…

25. Constitution of India:
PART XI
RELATIONS BETWEEN THE UNION AND THE STATES
CHAPTER I. LEGISLATIVE RELATIONS
Distribution of Legislative Powers
246. Subject-matter of laws made by Parliament and by the Legislatures of States.-
(1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power
to make laws with respect to any of the matters enumerated in List I in the
Seventh Schedule (in this Constitution referred to as the "Union List").
(2) Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the
Legislature of any State _219*** also, have power to make laws with respect to
any of the matters enumerated in List III in the Seventh Schedule (in this
Constitution referred to as the "Concurrent List").
(3) Subject to clauses (1) and (2), the Legislature of any State _219*** has exclusive
power to make laws for such State or any part thereof with respect to any of the
matters enumerated in List II in the Seventh Schedule (in this Constitution referred
to as the "State List").
(4) Parliament has power to make laws with respect to any matter for any part of the
territory of India not included _220[in a State] notwithstanding that such matter is
a matter enumerated in the State List.

26. Pakistan
all those not enumerated in the Federal List –
belong to the provinces:
Art. 142(c) Subject to paragraph (b), a Provincial
Assembly shall, and Majlis-e-Shoora (Parliament)
shall not, have power to make laws with respect to
any matter not enumerated in the Federal Legislative
List.]
As said earlier: Emergency powers are not adequate
legal safeguards within the NORMAL SYSTEM…

27. INDIA
248. Residuary powers of legislation.-
(1) Parliament has exclusive power to make any
law with respect to any matter not
enumerated in the Concurrent List or State
List.
(2) Such power shall include the power of
making any law imposing a tax not mentioned
in either of those Lists.

28. India
249. Power of Parliament to legislate with respect to a
matter in the State List in the national interest.-
• (1) Notwithstanding anything in the foregoing
provisions of this Chapter, if the Council of States has
declared by resolution supported by not less than two-
thirds of the members present and voting that it is
necessary or expedient in the national interest that
Parliament should make laws with respect to any
matter enumerated in the State List specified in the
resolution, it shall be lawful for Parliament to make
laws for the whole or any part of the territory of India
with respect to that matter while the resolution
remains in force.

29. So what is the “Council of Common Interests”?
• 153. Council of Common Interests.—(1) There shall be a
Council of Common Interests, in this Chapter referred to as
the Council, to be appointed by the President.
• 1[(2) The Council shall consist of—
• (a) the Prime Minister who shall be the Chairman of the
Council;
• (b) the Chief Ministers of the Provinces; and
• (c) three members from the Federal Government to be
nominated by the Prime Minister from time to time.]
• 2[(3)] Omitted.
• (4) The Council shall be responsible to 3[Majlis-e-Shoora
(Parliament)4[and shall submit an Annual Report to both
Houses of Majlis-e-Shoora (Parliament)] ].

30. 154. CCI - Functions and rules of procedure.—
• 1[(1) The Council shall formulate and regulate policies in relation to
matters in Part II of the Federal Legislative List and shall exercise
supervision and control over related institutions.] ……….
• 2[(4)] The decisions of the Council shall be expressed in terms of the
opinion of the majority.
• 2[(5)] Until 3[Majlis-e-Shoora (Parliament)] makes provision by law in
this behalf, the Council may make its rules of procedure.
• 2[(6)] 3[Majlis-e-Shoora (Parliament)] in joint sitting may from time to
time by resolution issue directions through the Federal Government
to the Council generally or in a particular matter to take action
as 3[Majlis-e-Shoora (Parliament)] may deem just and proper and such
directions shall be binding on the Council.
• 2[(7)] If the Federal Government or a Provincial Government is
dissatisfied with a decision of the Council, it may refer the matter
to 3[Majlis-e-Shoora (Parliament)] in a joint sitting whose decision in
this behalf shall be final.

31. CCI - WILL NOW DEAL WITH
All subjects in Federal Legislative List – Part II.
It is a body “Supra” to Parliament…..
18th. Amendment HAS WITHDRAWN THE POWERS OF
PARLIAMENT AND PUT THE COUNCIL OF COMMON
INTEREST IN CHARGE – of some of its former
subjects.
A ‘Mini-Parliament’ of the Executives
over the Parliament?

32. i.e.
Federal Legislative List - Part – II
Under Council of Common Interest – (politicized is not
“Civilian” control)
1.Boilers
2.Capital Gains Tax
3.Electricity
4.Major Ports – declaration and delimitation and constitutions and powers of port
authorities;
5.Regulatory authorities
6.National Planning
7.Public Debt
8.Census
9.Extension of jurisdiction of provincial police
10.Legal, medical and other professions
11.Standards – in higher education and research & scientific and technical institutions
Inter-provincial matters and co-ordination.
No Civil or Corporate Law or Civil Procedure
(trade and other civil matters are now part of the Provinces)

33. And…
• 14. Evidence & Oath (HASBA? And non-HASBA?)
• 15 Marriage, Divorce, infants and minors, adoption
• 16 Wills, intestacy and succession –
except agricultural lands (with provinces!)
• 17 Bankruptcy, insolvency, administrators-general and
Trustees (Charitable Foundations)
• 19. Arbitration. (Dead-end for international investment)
(IN COLD STORAGE – SO PROVINCES FREE TO MAKE
LAWS – NO STANDARDISATION)

34. And – in relation to Water and Hydel
Electricity?
• “Provided that the Federal Government shall, prior to
taking a decision to construct or cause to be
constructed, hydro-electric power stations in any
Province, shall consult the Provincial Government
concerned.”; and
• “(3) In case of any dispute between the Federal
Government and a Provincial Government in respect of
any matter under this Article, any of the said
Governments may move the Council of Common
Interests for resolution of the dispute.”.
(ANY DISPUTE? GOES TO CCI)

35. the matter gets put into cold
storage…
So we can also forget the
dams…..

36. Functions..
(Isn’t this the work of the Cabinet?)
• (2) The National Economic Council shall review the
overall economic condition of the country and shall,
for advising the Federal Government and the
Provincial Governments, formulate plans in respect of
financial, commercial, social and economic policies;
and in formulating such plans it shall, amongst other
factors, ensure balanced development and regional
equity and shall also be guided by the Principles of
Policy set out in Chapter 2 of Part-II. (according to
available resources)………
• (5) The Council shall be responsible to the Majlis-e-
Shoora (Parliament) and shall submit an Annual
Report to each House of Majlis-e-Shoora
(Parliament).]

37. Parliament’s Supremacy?
Subjects withdrawn – remainder shared with…
Council of Islamic Ideology
Parliament ?
Council of Common
Interest
The Law & Justice
Commission

38. The Cabinet too is, in effect, dismantled..
Bodies answerable independently to Parliament…Just
having the PM in all
is not cohesion….
The Cabinet
???
The National
Economic Council
The National
Finance Commission
The Parliament

39. And the multiplication of
constitutional
bodies…
And the dismantling of powers….
Will produce confusion….
Is this Federalism?

40. 19th. Amendment:
• Sets up the Islamabad High Court;
• Introduces Parliamentary role in appointment of
Judges
• Interestingly rearrranges some districts in the TRIBAL
AREAS – (sensitive gerry-mandering….)
Case challenging the 19th. Amendment only refers to the
appointment of Judges
Supreme Court only rules on the appointment
issue – its silence on the rest – implies
acceptance…. maybe….

41. It is the standardization and
uniformity dynamo – that
keeps the separate wheels of State
working together smoothly
- without falling apart…

42. Like a Fan Belt – without which a
car engine will not work
(or ball bearings in a component):

43. Modernity
&
Post-Modernity
(Modern era of Constitutions
- The Rule of Law)
LESSONS OF HISTORY
On Federalism

44. 3 Subjects at the Centre and Equality of votes
Lessons of History:
1. Confederation of Helvetia
Switzerland
• Also began as a Confederation
(1691 – 1874)
• Era of Modern times ….civil war….
- came to near dissolution…

45. Switzerland
Confederation of Helvetia
1872 - Civil War - Sundersbunderskrieg

46. 1874 – Written Constitution -
converted into a Swiss Federation -
to save itself from its
aggressive neighbours…
It survived…
No more 3 subjects at the Centre –
almost 70% powers are with the Centre.

47. USA
Declaration of Independence, 1776
Articles of Confederation, 1777 :
• Three subjects at the Centre ---
Defence, Foreign Affairs & Currency…
• Each State had an equal vote at the Centre…
• To Coin or borrow money – with consent of 2/3rd.
States…

48. From US Bi-Centennial Pamphlet...

49. USA
• Civil War…..
eg. Water disputes…
Border disputes...Debts…
Shay’s Rebellion…farmers revolt..
State Governments shoot their own farmers.....

50. Trouble erupts all over....
Americans suffer from post-war economic depression including -
• a shortage of currency,
• high STATE TAXES,
• nagging creditors,
• farm foreclosures
• Bankruptcies
MORE
Rebellions….
Joblessness....
Severe winters....
Starvation................
Federal defence…
HELPLESS…
NO MONEY……

51. The US Founding Fathers…
The Federalists
Thomas Jefferson John Adams
Alexander
George Hamilton
Washington
James Madison

52. & Benjamin Franklin….
Political Thinker &
Scientist -
Who discovered
Electricity….
First US
Ambassador to
France in 1777…
They all read John
Locke,
Montesquieu &
Rousseau….

53. US Founding Fathers discussing ideas of
Englishman John Locke & French thinkers…

54. So what did they invent and
why?...
“In unfolding the defects of the existing
Confederation, the utility and necessity of a
federal judicature have been clearly pointed
out.” :-
The Federation....The Union....(Each State had its
own constitution – which they had to handle
carefully)
They designed each Federal Pillar of State– the
Executive, Legislature and Judiciary - with
certain powers -
on the logic of checks and balances to
offset the powers given to each pillar of State
and each level of structure of State….

55. First Written Constitution
From Confederation – to Federation
“The inventions of Prudence”
• “The constant aim is to divide and
arrange the several offices in such a
manner as that each may be a check on
the other...”
–Equally worried about British aggression….

56. After USA – in 1874, Switzerland:
• 1874 - Federal Constitution of the
Confederation of Helvetia –
• Union given 60% powers
• 2000 - Revised Federal Constitution -
More Centralised….
• Union given most powers
except Local Government

57. Even India is conscious of a
cautious balance of power between Union
and states…
Seventh Schedule: Has the -
• Union List
• Concurrent List
• State List……very limited in subjects…..
And Art. 248 - Residuary Powers of Legislation are with
the Union (Centre) - besides emergency powers.

58. Dynamics ?
The 18th. & 19th. Amendments:
Have set in motion:-
Devolution?
or
Dismantlement?....
– that is the question…..

60. The Challenges?
• 18th. Amendment:
Art. 213: Appointment of CEC
DEADLOCK
• Art. 63 (2) : Speaker’s power’s and jurisdiction
enhanced to override any disqualification
order – even if from SC
DEADLOCK

61.  HEC – issue
 Federal Board – issue
 Several other issues…..

62. Without any Concurrent List –
in 10 - 20 years - you will have
four different Civil, Criminal laws and
procedures – as the provincial assemblies
make their own amendments and laws….
• Eg.
Khyber – Hasba Act… Swat Deal….Sharia Regulations
Balochistan - …..Tribal Jirgas
………………………………………………………………………………………………
Sindh – the PPC, Cr. P.C
Punjab… like C.A. 15?

63. It will be like an amoeba splitting into
two - over a period of 10 years……

64. What do we want? This?

65. Or This? It’s your choice….

66. This is our
heritage –
Full of
promise –
together.
Thank you!