CHIEF Justice of Pakistan Saqib Nisar’s recent judgement upholding the rule of international law over and above local law and even the Constitution has, surprisingly, gone almost unnoticed, despite its profound impact on the future positioning of international law in Pakistan’s jurisprudence.
Headed by the CJP, a three-member bench, while examining the validity of the Industrial Relations Act (IRA), 2012, noted that “through the 18th Amendment the Concurrent Legislative List (CLL) Entries 26 and 27 whereof covered the subjects, inter alia of labour disputes and trade unions) was abolished from the Constitution”. The court then referred to the revised entry 32, inserted in the Federal Legislative List (FLL), which dealt with subjects related to international treaties, conventions, agreements and arbitration. Thus, the court found that entry 32 enables the federal parliament to enact laws to implement international treaties for Pakistan’s territories even if the said subject may have devolved to the provinces.
In the case in hand, Pakistan ratified several ILO conventions and, despite the subject of labour having been devolved, parliament enacted the federal IRA. In his judgement, the CJP approved the constitutional validity on the grounds that it was also serving as the implementing legislation of a ratified treaty and therefore, under entry 32, the federal government had the competence to enact federal laws notwithstanding the mandate of provincial governments under the 18th Amendment.
Entry 32 was added in the FLL as part of the amendment package because concerns were raised by several experts, including by this writer, that deleting the CCL entirely instead of in phases would result in complications.
Can we uphold international commitments post-devolution?
Well before devolution, in an exercise for the Ministry of Inter Provincial Coordination, our team analysed stacks of provincial and federal laws against each entry of the CLL and concluded that in the first phase only 22-25 entries should be deleted. Otherwise, the federation would face many administrative difficulties executing federal statutes whose subjects have been devolved. We also suggested that deleting the CLL in its entirety may affect the uniform implementation of international treaties throughout the provinces.
Pakistan was then party to thousands of treaties, and at least 60 per cent of our federal and provincial laws were directly or indirectly serving as implementing legislation for one international treaty or the other.
Just weeks before the amendment was passed, this writer had suggested in Dawn that the constitutional amendment committee consider incorporating a provision in the package similar to Article 253 of India’s constitution, which states “… Parliament has power to make any law for the whole or part of the territory of India for implementing any treaty, agreement or convention …”.
The committee did not agree entirely, but it nevertheless reformulated and strengthened the existing entry 3 related to international law, inserting it afresh as entry 32 in the FLL, which performed a function similar to India’s Article 253. It has taken several years for the Supreme Court to interpretatively acknowledge entry 32.
The federal government is answerable to the international community about the implementation of international agreements throughout its territories. For Pakistan to argue that it cannot be enforced due to the 18th Amendment would be viewed as the country defaulting on its international obligations. For the international community, this amendment is no more than what they would refer to as ‘domestic law’. Failure to uphold international obligations due to an inconsistent or obstructive amendment would be viewed by the international community as a default simpliciter by Pakistan. That is when entry 32 becomes so important.
In order to better assist the provinces to recognise and perform their international obligations, as caretaker law minister in 2013, this writer notified treaty implementation cells in all provinces. Some cells were strengthened by the subsequent government, and they proved instrumental in explaining to the international community (particularly the EU) the complexities of implementing the 27 conventions included in the GSP Plus scheme.
Against this backdrop, the CJP’s recent judgement is helpful as it is perhaps one of first few judgements of the apex court to lean on entry 32 to uphold the rule of international agreements ratified by Pakistan through enactment of federal legislation, despite the concurrent subject having been devolved. This means that, while provinces can undertake legislation and executive actions on subjects devolved on them, where it’s a question of implementing a ratified international agreement, the competence of the federal government to legislate on the subject will override that of the provinces.
The writer is an ex-caretaker federal law minister.
Published in Dawn, April 22nd, 2018