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
18th Amendment eliminated the jurisprudence of the ‘doctrine of necessity’. In the United
States, the 13th 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 18th Amendment.

The 18th 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 18th 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 18th
abolished the Concurrent list, and limited the federation’s power over only those subjects given
in the 4th 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 4th 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 4th 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 18th
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 18th
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 18th
Amendment even came about. To use those to justify federal power makes no sense in a post-
18th Amendment world. Context matters in constitutional interpretation. Which brings us to the
Council of Common Interest (CCI) which was, prior to the 18th Amendment, little more than
window dressing. Providing the illusion of provincial consensus while the Centre took unilateral
decisions. The 18th 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 18th 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 18th 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 18th Amendment to come to their respective conclusions.

The judiciary continues to prefer, regardless of parliamentary intent, an old centralised model.
The model that the 18th 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
18th Amendment to save.

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

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