Code Blue: the constitutional model in Pakistan calls for CPR

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Aneel Sagar

Shaukat Kahnum Memorial Cancer Hospital and Research Centre, Lahore

aneelsagar@gmail.com

For those lawyers who work in-house at healthcare facilities with critical care units), it is very usual to hear ‘Code Blue’ announcements and seeing Code Blue Teams rushing to provide CPR (cardiopulmonary resuscitation) to the patients in cardiopulmonary arrest. They also know, through information shared by their colleagues in medicine, that it does not always work.

The Covid-19 pandemic has brought the political relationship between the federating units of Pakistan to such a point where most of the constitutional ‘doctors’ are diagnosing a constitutional arrest requiring immediate CPR (constitutional-political reforms) – with some proponents suggesting that we need an emergency setup to treat the patient.

Covid-19 has affected almost all countries and exposed their weaknesses – which many be economic, legal, social, political or environmental. Pakistan has faced many challenges due to Covid-19 but its biggest challenge is the threat to the legalism envisaged under its constitution.[1]

Pakistan is a federal state, constituted upon its four provinces and other federating units. The Constitution of Pakistan provides for participatory federalism, with the legislative and executive powers distributed amongst the centre and the federating units. Before the promulgation of the 18th amendment to the Constitution in 2010, the constitution of Pakistan had two legislative lists: the federal legislative list and concurrent legislative list. The matters mentioned in the federal legislative list were exclusively reserved for the federation, whereas both federation and provinces could legislate on matters mentioned in the concurrent legislative list, with the overriding right of legislation reserved for the federation in case of inconsistency. The provinces were free to legislate on all matters not mentioned in above lists.

The 18th amendment changed this highly centralised federating model by abolishing the concurrent legislative list and introducing changes in around 101 articles of the Constitution. It was felt that, for the first time in Pakistan’s constitutional history, the powers of the centre and its federating units were balanced – until Covid-19. The whole system seems to be ‘infected’ by coronavirus and it’s getting worse day by day.

The first blow to this ‘ideal federal system’ was felt when Sindh, the second largest province of Pakistan in terms of population, attempted to move towards a strict lockdown whereas central government vehemently resisted it. This created confusion as to the legislative and executive powers of provinces in situations requiring emergency measures for the national benefit. The federal legislative list is silent, which implies that it is a residuary issue reserved for the provinces, whereas a province alone cannot define national policy.

The procedure to add a matter in the federal legislative list, on the other hand, is so strict that any government cannot achieve it if it does not retain a two-thirds majority in both houses of parliament and the house of the province concerned. The absence of these matters on the federal legislative list proved to be disaster for central government. The federal government can only legislate on matters relating to ‘legal, medical and other professions’ and ‘matters incidental or ancillary to any matter enumerated in this Part’. The current national epidemic crisis does not fall into any of these. To cover the gap, the central government has set up helplines under its Ministry of National Health Services Regulations and Coordination[2] for the provision of important information about coronavirus treatment and prevention. It has also established a National Command Operation Centre[3] to implement a national approach against Covid-19 with the agreement of all provinces. Despite being beneficiaries of all these measures taken by the central government, the provinces are accusing it of encroaching into their domains.

This has spawned debate within the country as to the effectiveness of Pakistan’s federal model. There is a strong view within the ruling party that the time has come to reverse the effect of the 18th amendment by tilting it again towards a highly centralised model. Some people are advocating curtailing of excessive powers of provinces – instead providing these to the federation – and some adventurous constitutional experts have suggesting ‘Governor rule’ – thus retaining the legislative and executive powers of ‘problematic’ provinces for the federal government during this time of national crisis.

All of these suggestions for constitutional-political reforms through legislation are impractical. The ruling party does not have a two-thirds majority in any house of the parliament; indeed, it does not even have a simple majority in the provinces resisting the national approach. For the sake of argument, even if we say that the ruling party has the requisite majorities to amend the constitution, would it be wise to tilt the power distribution between central government and federating units in response to every new challenge? Acts like the suspension of provincial assemblies have always yielded catastrophic results for Pakistan.[4]

Rather, the constitutional dilemma sparked by Covid-19 should be resolved without reference to Covid-19. The coronavirus may be novel but the resulting issues are not new for the people of various federal states (like the United States) who paved the way of constitutionalism by resolving these controversies.[5] Every federal state is based on two sentiments (inconsistent with each other) amongst the inhabitants: the impress of common nationality and a desire for union but not unity.[6] The competing interests of sovereignty between central and federating governments are settled by declaring the supremacy of constitution. It is immaterial whether a federating model is highly centralised or highly regional. In both models, all governments work within the spheres strictly defined under the constitution. The paramount feature of a federation is distribution of power within its federating units so they work independently within their spheres. Although the federal constitutions are structured in a way that concentration of power in the centre, or in any unit, is avoided, disputes are inevitable. Therefore, the important feature of any federal constitution is a mechanism for justiciability of power. This is the only reason that judicial power is not divided in these constitutions. What is inevitable in a federal model is existence of neutral and independent judiciary. Federalism means legalism and legalism is dependent upon judicial decisions.

Let’s try to articulate the disputed issue between central and provincial governments of Pakistan. It is portrayed as if the encroachment of federal government to a subject reserved for provincial legislatures is the main bone of contention between the two types of governments: however, the main dispute is control of a matter of national supremacy. The simple answer to this dispute is that what concerns the nation should be under control of national government.

This is not the first time this issue has come up amongst the powerful politicians of Pakistan. From constitutional history of Pakistan, it is evident that whenever the legislative and judicial organs of the federation showed their inability to keep the constitutional process evolved around principles of national supremacy, it allowed executives to take matter in their hands. This resulted in the discontinuity of political process. There are many examples:

• the dismissal of the Nazimmudin ministry in 1953;
• the dismissal of the constituent assembly in 1954;
• the abrogation of the 1956 Constitution;
• the abrogation of the 1962 Constitution;
• the dissolution of the Balochistan ministry in 1974;
• the suspension of the 1973 Constitution in 1977;
• the proclamation of emergency on 12 October 1999; and
• the emergency on 3 November 2007.

As written by renowned jurist Dr. Shaukat Hussain:

‘Our approach in Pakistan was just the reverse and we disregarded the constitution at will which caused to initiate a conflict between the centre and the provinces. More than 80 per cent of the people do not understand the importance of the supreme law of the land and those who do, constitution is seen by them as a power-play between the elites contending for power.’[7]

The judiciary plays a key role in filling in the gaps of legislation in a federal state: that is why the Supreme Court of Pakistan opted to intervene through a suo-motu case by relaxing the lockdown during a specified period,[8] when the federation and the largest province were in deadlock with another province. In my opinion, the current situation requires no CPR; rather, it is now time for the judiciary to particularise the generalities of the constitution and pave the way of the idea of national supremacy rooted in the constitution.