Rai Muhammad Saleh Azam & Sehrish Tasneem Zafar
I. Introduction
Pakistan is at a critical juncture of its history when it direly needs stern action from its political leadership and elected representatives that further unites, rather than divides, the nation. The 27-member Special Committee of Parliament on Constitutional Reforms (the “Constitutional Reforms Committee”) chaired by Senator Mian Raza Rabbani, has formulated recommendations for constitutional reform, one of which is the abolishment of the Concurrent Legislative List in the Fourth Schedule under Article 70(4) read with Chapter 1 of Part V (the “Concurrent List”) of the Constitution of the Islamic Republic of Pakistan, 1973 (the “Constitution”). The abolishment of the Concurrent List will have adverse and far-reaching consequences not only for national unity but also for national integrity.
Constitutional reform is a very serious matter that should not be undertaken lightly for political expediency and for gaining short-term electoral-oriented popularity at the expense of long-term national interests. Furthermore, all constitutional reforms are not of the same importance, weight and consequence and, therefore, should not be clubbed together under the same agenda and delivery deadline. Minor constitutional reforms i.e. those reforms that do not alter the spirit and structure of the Constitution should be detached from major constitutional reforms that do, especially those reforms that would pose a potential threat to the Federation of Pakistan.
As an example, renaming of the North-West Frontier Province would not be a reform that would alter the spirit or structure of the Constitution, nor would it have any adverse consequences for Pakistan. However, abolishment of the Concurrent List impacts and alters the spirit and structure of the Constitution in a manner that will have adverse consequences for Pakistan, some of which, perhaps, are not being foreseen by the Constitutional Reforms Committee.
It is not without reason that some of Pakistan’s most respected constitutional experts, such as S.M. Zafar and Khalid Anwer, have publicly opposed the abolishment of the Concurrent List. Indeed, Senator S.M. Zafar, who is himself a member of the Constitutional Reforms Committee, has rightly written a dissenting note on the Constitutional Reform Committee’s recommendation for the abolishment of the Concurrent List. Mr. Khalid Anwer, in a recent article in a leading national daily newspaper, while laying out cogent reasons for retaining the Concurrent List and exposing some of the questionable factors behind the proposal for its abolishment, pleaded for “one system, not four.”
II. Distribution of Legislative Powers in Federal Systems
To appreciate the importance of the Concurrent List and understand why it should not be abolished, let us first understand what concurrent legislative powers do within the context of the Pakistani federation and federalism generally.
The 1973 Constitution of Pakistan envisaged and established a parliamentary democracy with a federal system of government. Indeed, Pakistan is one of only 29 countries of the world today that have a federal system of government. The Constitution establishes a federation in which legislative powers have been distributed between the federation and its four major federating units, namely the provinces of (i) Balochistan, (ii) the North-West Frontier, (iii) the Punjab and (iv) Sindh.
Federalism has proved to be a successful organizing model for countries that seek to maintain elements of both unity and diversity in their populaces and political institutions. The essence of federalism lies in the sharing of executive and legislative powers by the federation and its federating units, i.e. the provinces or states.
This distribution of legislative powers, also known as the ‘division of legislative powers’, is one of the most significant and fundamental aspects of any federal constitution. In a federal system, legislative or law-making powers are distributed amongst the federal legislature and the legislatures of the federating units. The distribution of legislative powers between the federation and the provinces is designed to blend the desire for autonomy and diversity with the imperatives of national unity, common interest and cohesion. The aim is to emphasize cooperation and coordination, rather than division and competition, between the federation and the provinces, with the objective of creating and maintaining interdependence whilst orchestrating a balance between the autonomy of the provinces and the unity and synergy of the federation.
There appear to be four general trends in the distribution of legislative powers around the world: (i) One common practice is to confer a list of exclusive powers on the federal government, leaving residual powers to the federating units; (ii) A second approach involves identifying a list of subjects pertaining to the federal and federating units respectively, with an added clause allocating residual powers to the federal government (as in Canada and Belgium); (iii) A third practice is to draw up three lists: federal, provincial and concurrent with residual powers given to the federation (as in India and Malaysia); (iv) The fourth and most common trend is to draw up two lists only - federal and concurrent – with all residual powers left to the federating units (as in Pakistan, the United States, Switzerland, Australia, Germany and Austria).
The residual power confers legal authority on one of the two tiers of government – either the federal or the provincial – for all matters that do not appear among the items listed in the legislative lists under the constitution. The purpose of residual power is twofold: (i) to provide for executive and legislative authority either to the federal or provincial government in cases where such powers are not explicitly listed in the constitution; and (ii) to account for unforeseen matters, which arise over time as a country develops economically and socially.
Although each of the two legislative tiers usually has its own sphere of jurisdiction, nothing prevents the two legislative tiers from mutually exercising a given power. This is known as shared or “concurrent” jurisdiction. In fact, 25 out of the 29 federal systems that exist in the world today make provisions for concurrent jurisdiction in legislative affairs, i.e. have concurrent lists (see attached Schedule). This is neither a coincidence nor without reason: cooperation and interdependence between tiers of government – federal and provincial – in specific areas are essential for development in any form of federal governance.
In all cases of concurrent or shared jurisdiction, federal constitutions contain a paramountcy provision that determines which legislative tier will prevail in cases of conflicting legislation. This tier is then said to possess potential, though not actual, exclusive jurisdiction since it could possibly occupy the whole field.
The general principle underlying the distribution of legislative powers in federal systems is that matters of common interest and concern to the country as a whole ought to be assigned to the federal legislature and matters of a decidedly regional or local character should be assigned to the provincial or state legislatures. The general pattern which emerges from this principle is that matters such as defence, foreign affairs, citizenship, currency, communications, civil aviation, major ports, administration of justice, national territorial waters, inter-provincial trade, natural resources, energy, etc. typically fall within the jurisdiction of the federation, while more regionally or locally-oriented matters such as social services, local government, provincial roads, agriculture, culture and tourism, etc. fall within the purview of provinces. Where strong national and regional interests coincide, as in taxation, education, health, maintenance of law and order, etc., powers are made concurrent, i.e. vesting in both the federation as well as the federating units.
III. Genesis of the Concurrent List
At this juncture, it would be pertinent to mention, that the entire scheme of distribution of legislative powers under the Constitution originates from the pre-independence Government of India Act, 1935 (the “1935 Act”), which was passed by the British Parliament and adopted as Pakistan’s Interim Constitution by Pakistan’s Constituent Assembly. Insofar as the Concurrent List is concerned, it is desirable to quote what the Joint Select Committee on Indian Constitutional Reform (the “Joint Select Committee”) had to say with reference to the Concurrent List, as contemplated in its 1934 Report, which led to the 1935 Act:
“Experience has shown, both in India and elsewhere, that there are certain matters which cannot be allocated exclusively either to a central or to a Provincial legislature and for which, though it is often desirable that provincial legislation should make provision, it is equally necessary that the central legislature should also have a legislative jurisdiction to enable it, in some cases to secure uniformity in the main principles of law throughout the country, in others, to guide and encourage provincial effort and in others, again, to provide remedies for mischief arising in the provincial sphere, but extending, or liable to extend beyond the boundaries of a single province.”
The above enunciation by the Joint Select Committee was not intended to be exhaustive. Nevertheless, it would be convenient to highlight the three main objectives of concurrent legislative power envisaged by the Joint Select Committee. These were: (i) securing uniformity; (ii) guiding and encouraging provincial effort; and (iii) providing remedies for problems arising in the provincial sphere, but extending, or liable to extend beyond the boundaries of a single province.
Under the 1935 Act, which the governed Pakistan as its Interim Constitution until its first indigenous Constitution in 1956, the Federal List had 59 subjects; the Provincial List had 54 subjects; and the Concurrent List had 36 subjects. Under the 1956 Constitution, the Federal List had 30 subjects; the Provincial List had 94 subjects; and the Concurrent List had 19 subjects. Under the 1962 Constitution, which created a unitary system, there was only a Federal List with 49 subjects. Finally, the 1973 Constitution, after much thought and deliberation, established only two lists: the Federal List with 67 subjects; and the Concurrent List with 47 subjects.
IV. Salient Features of Distribution of Legislative Power in Pakistan
The following salient features mark the scheme of distribution of legislative powers under the Constitution:
(i) Article 142 demarcates the legislative domain, subject to the controlling principle of the supremacy of the Federation, which is the basis of the entire system. There is a four-fold distribution of legislative power represented by two legislative lists:
(a) to the Federation under the Federal List;
(b) to both the Federation and Provinces under the Concurrent List;
(c) to the Provinces with respect to any matter not enumerated in either the Federal or Concurrent List (i.e. residual power); and
(d) to the Federation in case of a territory not forming part of any Province.
(ii) Supremacy of the Federation is maintained in one situation: if both the Federation and a province legislate on the same subject-matter under the Concurrent List and both laws are in conflict with or inconsistent with each other, then the rule of repugnancy, as enshrined in Article 143, comes into play to uphold the principle of the supremacy of federal law. Specifically, a provincial law cannot override a federal law and must yield before the federal law in the event of conflict or inconsistency.
(iii) Parliament, by virtue of Article 142(a), has exclusive power to legislate on any matter under the Federal List.
(iv) Both the Federal and Provincial legislatures, by virtue of Article 142(b), have the power to legislate in respect of any subject contained in the Concurrent List.
(v) In determining the extent of legislative power of the federation and the units, if a doubt arises as to the list in which a particular subject of legislation falls, the non obstante clause in Article 142 achieves provincial supremacy.
(vi) If a particular topic does not find an express mention in the two legislative lists, then the exclusive power to legislate thereon (i.e., the residuary law-making power) is vested in the Provinces (note that in India, the opposite is the case, the residuary power vests in the Federation).
Thus, the principles governing the distribution of powers under the Constitution may be summarized as follows:
(a) A provincial legislature cannot legislate on any matter falling under the Federal List.
(b) The Federal and Provincial legislatures may both legislate on matters on the Concurrent List. However, where a subject-matter has been concurrently legislated and if there is a conflict or inconsistency between the Federal and Provincial law, the Federal law will prevail.
(c) A subject-matter not falling under either the Federal or Concurrent List becomes the exclusive domain of the Provincial legislatures and the Federal legislature cannot legislate upon it.
By way of comparison, it may be pertinent to mention that in South Africa, the legislative powers of South African provinces are not unfettered despite the existence of an exclusive provincial list. Under Article 44(2) of the Constitution of South Africa, 1996, the federal Parliament may intervene, by passing legislation with regard to any matter falling within the exclusive jurisdiction of a province when it is necessary to: (i) maintain national security; (ii) maintain economic unity; (iii) maintain essential national standards; (iv) establish minimum standards required for the rendering of services; or (v) prevent unreasonable action taken by a province which is prejudicial to the interests of another province or to the country as a whole.
In this broad-ranging overview, it is clearly evident that there is no single uniform approach to the distribution of government and legislative powers and functions in federal systems. Indeed, one may be overwhelmed by the variety of arrangements that have been employed to enumerate and allocate areas of jurisdictional authority between the two tiers of government in federations. Notwithstanding the diversity of these approaches, however, it is also important to recognize that the devices, instruments and allocations, which have proven to be effective in one federal system, have often been successfully adapted or modified to suit other federations. Such comparative perspectives, therefore, can be instructive for Pakistan at this time when it is engaged in the process of constitutional review. In this regard, the fact that concurrency of legislative power is a feature of 25 of the world’s 29 federations, should not go unnoticed by the Constitutional Reforms Committee and Parliament.
V. Benefits of the Concurrent List
Concurrency of legislative power has several advantages in federal systems:
(i) It enables uniformity of laws throughout the country, which translates into simplicity, certainty and equality for citizens and foreign investors alike.
(ii) The federal government may wish to legislate nationwide standards (in education, healthcare, accountability, taxation, and corporate regulation for example) while leaving provincial governments to develop services in a manner sensitive to local circumstances and conditions.
(iii) It introduces an element of flexibility and innovation in the distribution of powers, allowing the federal government, for example, to postpone exercise of authority in a particular field until a matter becomes of federal importance. The provincial governments may, thus, in the interim, proceed with their own initiatives.
(iv) It enables the federal government to guide and encourage provincial efforts in areas either neglected or not catered to by a province.
(v) The device of concurrency also enables the federal government to temporarily occupy what are typically provincial fields of jurisdiction (a) to protect the national interest; (b) to deliver legislation or services falling under an item in the Concurrent List when a province is, for various reasons, unable to do so itself; (c) when a provincial government is incapable of or is failing to provide direly-needed legislation or services that would benefit the people of the province; (d) when a provincial government lacks the political will to pass direly-needed legislation or provide services that may otherwise be beneficial to their population; (e) when a provincial government lacks the resources or expertise to provide or implement certain policies; and (f) generally to fill a vacuum created by the legislative inaction of a provincial government.
(vi) It enables the federation to provide remedies for problems arising in the provincial sphere, but extending, or liable to extend beyond the boundaries of a single province.
(vii) It obviates the necessity of enumerating complicated, minute subdivisions of individual functions to be assigned exclusively to either tier of the legislature.
(viii) It makes it easier, simpler and cheaper for national systems to link up with global systems. Globalization, as a phenomenon, has created a great deal of mobility of goods, services, capital and technology, resulting in closer integration amongst nations. There is a need for greater, more efficient and sustained coordination in identification and formulation of responses among the nations to the common challenges faced by them. This process of cohesive and concurrent action needs to generate, firstly, within the national context before it can be achieved in the international context. The diversities and differences between the provinces have to be bridged and harmonized in order that these may link with global processes for viable sustained, development and growth. A major field of undertaking new initiatives in these spheres would lie in the legislative domain where concurrence and coherence between the provinces and their different needs have to be harmonized to evolve national policies and outlooks. This is particularly important for investment, business, trade, technology, financial services, etc. in both the national and global context.
VI. Consequences of Abolishing the Concurrent List
Abolishing the Concurrent List in Pakistan will create both foreseeable and unforeseeable consequences. Some of the foreseeable consequences, inter alia, are as follows:
(i) It would deprive the federation of legislative power in many areas in which nationwide legislation is not only desirable but can be more effective. Certain legislation, such as that governing administration of justice, civil and criminal procedure, regulation of companies and the financial services sector, competition, accountability, taxation, etc. require uniformity and nationwide application. If the national application of such legislation is abolished and each province is allowed to go its own way, national cohesion will be lost, the cost of doing business will go up, domestic and foreign investment will further be discouraged (as investors will have to deal with four different systems, instead of a single uniform system).
(ii) In the absence of federal legislation with nationwide applicability, there will be a plethora of different laws and regulations for the Pakistani people and foreign investors to deal with. There will be a breakdown in the system as critical subjects become fractured amongst the provinces. This will lead to further inefficiency and corruption. The number of laws and regulations would become quadrupled with each of the four provinces promulgating their own version of legislation on the same subject-matters.
(iii) It would weaken the federal Parliament (National Assembly and Senate) as important subjects currently within its purview would be transferred to the provincial assemblies. In this process, the Senate, which gives equal representation to the provinces at the federal level, would also be weakened resulting in the undesired weakening of institutionalized provincial power at the federal level.
(iv) It would dismantle large parts of the federal government that have in the past been, and are likely in the future to be, more effective than provincial governments in offering solutions and delivering services to the people of Pakistan and upholding national interests.
(v) It would substantially reduce the federation’s revenue as provincial legislative power transfers substantial revenue collection from the federation to the provinces. This would adversely impact the federation’s spending powers and, resultantly, its influence, thereby resulting in the weakening of the federation.
(vi) It would deprive provinces of the minimum standards set by the federal government in various spheres, which are, more often than not, due to the more diverse inputs behind them, higher than the standards set by provincial governments.
(vii) Laws would assume a patched provincial outlook rather than a seamless national outlook and further provincial interests rather than national interests, with social, political and economic consequences.
(viii) Domestic and foreign investors, businesses and professionals doing work in one province will not readily be able to expand their businesses to other provinces as the regulatory systems in each province would be different and unfamiliar. It will give rise to repetitive and redundant regulatory processes. This will increase the cost of doing business in Pakistan as a whole, especially for national businesses and foreign multinationals who wish to do business in all the provinces of Pakistan.
(ix) Competition between provinces on the same subject-matter would result in a phenomenon, which is known as the “race to the bottom.” Since the optimal outcome for a group of participants results from cooperation between the participants, it is put in danger by the fact that the optimal outcome for each individual is to not cooperate while the others do cooperate. An economic example of racing to the bottom in the context of federalism is tax competition between provincial governments. Each provincial government may benefit from higher tax revenues by having a high tax on corporate profits. However, provincial governments can benefit individually with a lower corporate tax rate relative to the other provincial governments in order to attract businesses away from the other provinces. This action would hurt all provincial governments except the one that undercut the others. In order to maintain the equilibrium, each of the other provincial governments would have to lower their corporate tax rates to match the "defector" (the provincial government that first lowered the tax rate). The end result would be that each provincial government would be compelled to adopt a lower corporate tax rate and, thus, collect less revenue overall. Whereas a uniform tax levied by the federal government and applicable nationwide (i.e. on all provinces) would prevent such an undesirable outcome from a revenue standpoint.
(x) Powerful elements and vested interests, which hold sway over provinces but are unable to exert influence on national legislation because their influence is diluted at the larger national level, will become more powerful within their provinces as their influence is concentrated at the provincial level enabling them to exert influence on provincial legislation on subject-matters that were hitherto being legislated at the national level. This is a phenomenon known as “interest group capture.”
(xi) The track record of the provinces in utilizing their own powers under the Concurrent List and their provincial budgets for the benefit of their subjects has been dismally poor and there is no indication that there would be any shift in their attitudes and approaches. Since they have not done justice to their people with their existing powers and existing budgets, they are unlikely to translate the enhanced powers and enhanced budgets, which they will inherit with the abolishment of the Concurrent List, for the benefit of their people.
(xii) Judges being elevated to the Supreme Court from the Provincial High Courts would have to educate themselves on the laws of three additional provinces, which would be different from the laws of the province from which they came.
(xiii) It would break one of the crucial threads of unity that binds the people of Pakistan’s four provinces with one another, i.e. common and familiar laws and regulatory systems. Different laws and regulatory systems in different provinces on the same subjects will create further division and distance between the Pakistani people, when the exact opposite is required. Familiarity will be replaced with unfamiliarity, comfort with alienation. Diversity is beneficial, indeed desirable, in culture, arts, language, literature, music, etc. but it becomes problematic in legislation and regulation where standardization, uniformity, simplicity and certainty are needed for development and progress.
VII. The More Viable Alternative
If one of the aims of constitutional reform is to strengthen provincial autonomy, the answer lies in (i) creating a third list, the Provincial List, and transferring some powers from the Concurrent List to the newly-created Provincial List and/or (ii) transferring some powers from the Federal List to the Concurrent List, not in abolishing the latter.
Furthermore, the principal critique of concurrency is not that it is not required, but that it is used without consultation: that it is not exercised effectively to deepen interdependence and cooperation between the Provinces and the Federation but to stress dominance of the Federal point of view. This has to change and can be changed whilst retaining the Concurrent List. What is required is the institutional validation of the exercise of concurrent powers with provincial consultation, input and feedback and to do away with the unilateral exercise of such powers by the Federation. This will restore the balance inherent in the original constitutional scheme and impart considerable vitality and credibility to Federal initiatives in the exercise of concurrent powers.
It has to be conceded that institutional arrangements for facilitating exchange of views between the Provinces and the Federation on matters falling within the field of concurrent legislation leave something to be desired. This has happened in spite of the existence of the Council of Common Interests (“CCI”) under Article 153 of the Constitution. The CCI has yet to develop into a mechanism to be relied on for an ongoing process of dialogue on vital socio-economic and political issues between the federation and the Provinces and amongst the Provinces themselves. Article 154 of the Constitution tasks the CCI with formulating and regulating policies in relation to matters in Part II of the Federal Legislative List and, insofar as they relate to the affairs of the Federation, other matters in the Concurrent List.
There is, however, no formal institutional structure that requires mandatory consultation between the Federation and the Provinces in the field of legislation under the Concurrent List, which covers several items of crucial importance to the national economy and national security. This has been despite the existence of numerous judgments of the Supreme Court of Pakistan that have stressed the need for provincial participation in matters affecting the federation. As an example, in Gadoon Textile Mills v. WAPDA, the Supreme Court observed:
"CCI occupies an important and pivotal position in the structure of the Constitution and it cannot be ignored, bypassed, surpassed or obstructed in performance of its Constitutional duties and obligations. Any attempt to obtain decisions in respect of matters referable to CCI, by any other person, authority, Government or corporation will be in violation of the Constitution lacking legal sanctity."
The Supreme Court has repeatedly asserted the importance of the CCI as an integral part of the federal structure of Pakistan. In Wattan Party v. Federation of Pakistan , the Supreme Court declared that the procedural rules framed by the CCI were required to be strictly adhered to for the purpose of implementation and carrying out its policies. In another judgment, the Singh High Court reiterated that, under the Constitution, the CCI was conceived as an institution of great importance in the federal structure of the Constitution meant for safeguarding the interests of the federating units and securing the harmonious functioning of government both at the federal and provincial levels.
Therefore, insofar as the exercise of concurrent powers is concerned, the task of consulting each other prior to the exercise of powers under the Concurrent List should be made mandatory for both the Federation and the Provinces. In this regard, the CCI is the best forum for such consultation. Consultation, of course, should, in the spirit of the Supreme Court’s judgment in the Al-Jehad Trust Case , be “effective, meaningful, purposive, consensus-oriented, leaving no room for complaint of arbitrariness or unfair play.”
Finally, to prevent extra-constitutional interventions and deviations, a mechanism similar to that of Article 44(2) of the Constitution of South Africa, 1996 should be adopted by allowing the Federal Parliament to intervene by passing legislation with regard to any matter falling within the exclusive jurisdiction of a province when it is necessary to: (i) maintain national security; (ii) maintain national unity; (iii) maintain essential national standards; (iv) establish minimum standards required for the rendering of services; or (v) prevent unreasonable action taken by a province which is prejudicial to the interests of another province or to the country as a whole.
VIII. Conclusion
The problems that have attracted attention in the field of Federal-Provincial relations have less to do with the existence, rationale or structure of the Concurrent List than with the manner and mechanism in which the Federation and Provinces have exercised their powers thereunder.
The Concurrent List has to be regarded as a valuable instrument for consolidating and furthering the principle of cooperative and creative federalism that has made a major contribution to nation-building, national unity and cohesion. What we require is to institutionalize, make meaningful and mandatory the process of consultation between the Federation and the Provinces on legislation under the Concurrent List by enhancing the role of the CCI thereby enhancing the sphere of subjects on which provincial consultation becomes mandatory.
The Concurrent List provides a fine balance between the need for uniformity and synergy in the national laws and a simultaneous jurisdiction for the Provinces to accommodate the diversities and peculiarities of different regions and adds a distinguishing feature in the federal scheme envisaged by the framers of the Constitution.
The Concurrent List vividly expresses and illustrates the underlying process of nation-building in the setting of our heterogeneity and diversity. The framers of the Pakistani Constitution, and indeed most of the world’s federal constitutions, recognized that there was a category of subjects of common interest which could not be allocated exclusively either to the Provinces or the Federation. Furthermore, a broad uniformity of approach in legislative policy was essential to combine specific requirements of different provinces with the articulation of a common national policy objective. In other words, the Constitution envisaged that the Federation and Provinces would be partners in development. In light of this, the Concurrent List could well be considered creative federalism at its best.
Greater provincial autonomy should not be given for reasons of political expediency. In the final analysis, it must benefit the people of these Provinces who are, foremost, equal citizens of Pakistan. Parliament has to assess the impact such autonomy would have on national unity, national interest and national cohesion. In many instances, the Federal Government, through legislation, has been the harbinger of social uplift and reform in the Provinces and has spearheaded and pushed social reform and economic development in Provinces. We cannot lose sight of the fact that the Provinces have been, somewhat, lethargic on many issues. Provincial legislation has been found wanting on many fronts. Also, in this day and age of globalization and standardization, when it is all the more imperative to have uniformity on many issues within the Federation, it is difficult to make out a case for greater provincial autonomy. It seems that we are donning the couture of provincial autonomy when it is no longer in vogue in the rest of the world. Europe, for example, is moving away from national autonomy towards interdependence and uniformity: EU legislation is increasingly overriding domestic legislation of sovereign member states.
The whole framework of legislative relations between the Federation and the Provinces, enshrined in Chapter 1 of Part V of the Constitution, has stood the test of time. The Concurrent List had the unanimous approval of Parliament behind it: it was adopted by Parliament when it unanimously passed the Constitution on 10 April 1973, which came into effect on 14 April 1973. A myth has been conjured up by some politicians that the Concurrent List was to be abolished in 10 years from the commencement date of the Constitution. This myth first reared its head sometime in the 1980s and was unheard of before. The fact remains that no such promise or provision is contained in the Constitution and, furthermore, the record of Parliamentary debates leading up to the passing of the Constitution shows that no such proposal was even discussed in Parliament. On the contrary, Parliament increased the powers of the Federation by enhancing the number of subjects in the Federal List from 49 to 67 and re-introduced the Concurrent List with 47 subjects, the highest number of subjects in the Concurrent List in Pakistan’s constitutional history. These were hardly the actions of a Parliament intent on abolishing the Concurrent List in 10 years time!
It may be pertinent to mention that where a constitutional provision was envisaged to be abandoned or abolished at some future point in time, such expiry provision was expressly mentioned in the Constitution. The only example of this is the Proviso to Article 27 of the Constitution pertaining to safeguards against discrimination in services, which states that the government may reserve seats or quotas for any class of persons to secure their adequate representation in the service of Pakistan for a period not exceeding 40 years, i.e. the quota system is scheduled to come to an end on 14 April 2013. Yet no such expiry provision was mentioned in the Constitution in relation to the Concurrent List. Furthermore, there is also no documentary evidence, not even a single newspaper clipping from that period, which proves that President Zulfiqar Ali Bhutto promised to abolish the Concurrent List in 10 years time, as falsely claimed by some. Even if it were so, which it isn’t, the President’s desire cannot override the unanimous will of Parliament. The proponents of this myth have not been able to produce a single shred of documentary evidence in support of their claim and are, therefore, doing a disservice to the constitutional history of Pakistan.
Above all, the abolishment of the Concurrent List will lead to the weakening of the Pakistani Federation. The move to abolish the Concurrent List at the altar of provincial autonomy – driven mostly by certain political forces that do not hold the interests of Pakistan at heart – is either very sinister or extremely reckless and will act as the Trojan Horse to Pakistan’s federal citadel. Abolishing the Concurrent List is tantamount to transforming Pakistan from a federation into a confederation or “loose federation”, which may result in Pakistan meeting a fate similar to that of two other “loose federations” - the erstwhile USSR and Yugoslavia. It is the national duty of every patriotic Pakistani Parliamentarian, indeed the entire Pakistani nation, to save this crucial feature of the Federation. The desire for greater provincial autonomy notwithstanding, strengthening of the Provinces should not come at the cost of the weakening of the Federation.
This paper was distributed to all Parliamentarians of Pakistan on 23 March 2010 and was published in its entirety as a full-page feature under the title "Concurrent Legislative List" in 'Business Recorder' newspaper on 18 April 2010
