RULINGS OF THE CHAIR

Senate is the House of our Parliament that represents and protects the interests of the Provinces. It has an inherent potential of creating a sense of justice and harmony among the Federating Units. The Chair of the Senate can use his authority to assert and highlight certain issues that are crucial to maintain this spirit. The Chair can use the tool of giving a ruling on a pertinent issue. A province or a senator can send a reference to the Chair to clarify or interpret a certain clause or issue related to the Constitution.

Mian Raza Rabbani being a competent constitutional lawyer, as well as a seasoned statesman used his position to officially highlight and explain some important gaps that needed attention of the Parliament, as well as the Federal Government. Ruling of the Senate Chair is a tool which can be used to elaborate a point, highlight a gap or stress a need that is constitutional requirement or is being ignored.

Former Senate Chair, Mian Raza Rabbani used his position to give rulings on pertinent issues in an outstanding manner. He proved his competence and wisdom to use this provision, at the same time he was true to his stance of protecting the interests of the provinces and taking Pakistan towards a participatory Federalism. Sometimes Chairs can give rulings on operational issues but several rulings of Mian Raza Rabbani have clarified very pertinent issues that has helped the provinces immensely.

The total number of his rulings was seventy eight. Four of them have been summarized for you below as examples of the significance of these rulings. Full text of these rulings has been published by the Senate for parliamentarians, policy makers, provincial leaders and the people of Pakistan, so that they can be made aware of what needs to be done or abide by a interpretation of a constitutional provision. These rulings then become important references that can be used in the courts and can guide the leadership in following the Constitution, in letter and spirit.

Rulings of the Chairman Senate, Mian Raza Rabbani

  1. Council of Common Interest: Situation Arising out of non-convening of the Meeting of the Council (CCI) as required under clause (3) of Article 154 of the constitution of Pakistan

Council of Common Interest is a Constitutional forum which brings the provincial leadership together to discuss issues that are concerning more than one province. Any conflicts between the provinces are also resolved here. This forum puts the provinces on an equal footing with the leadership of the center and with each other. In the past this forum was avoided and provinces were left to play favorites with the center. In the 18th amendment this forum was strengthened and institutionalized. However, the under currents of the tugawar between the provinces and perhaps the intention of not fully devolving the powers to the provinces creates resistance in the institutionalizing of this forum.

Senator Sassi Palijo moved a motion to discuss the role of CCI in December 2015. Senators  showed concern that the CCI is not being convened as per schedule stipulated in the Constitution, which was one meeting at least every 90 days. It had been 331 days without convening a meeting, which left several issues pending and out the forum on a weak footing.

 

The ruling of the Chairman provided the history of this institution, which was first articulated in the India Act 1935, later was incorporated in Pakistan’s constitution of 1956, that of 1962 and then the final Constitution of 1971. The ruling explained the significance of functioning of this institution and additions that were made under the 18th amendment in its scope and functions. It clearly explained the provisions and themes that could be brought in this forum for discussion.

 

The nature of the ruling is partially educational and partially firm enforcement so that bodies taking constitutional provisions for granted can be held accountable. He did not declare all the actions in violations of the constitutional provisions unconstitutional but declared that after 15 days of the announcement of the ruling all violations will be considered unconstitutional. In this way he provided education, awareness and facilitated implementation of an important constitutional provision and also strengthen an important interprovincial institution.

2. Placement of Regulatory bodies under the line Ministries

The Prime Minister transferred the administrative control of a few regulatory authorities from the Cabinet division to the line ministries on 19th December 2016. There were questions in the Senate and the relevant Minister had to give an explanation. The chiar examined the relevant facts and documents in consideration and provided in his ruling

Control of Regulatry Authorities cannot be transferred from one Ministry to another Ministry without obtaining prior approval from the CCI in terms of Article 154 of the Constitution.

In other words, he challenged the decision of the Prime Minister and explained that the PM  could only act on matters strictly and exclusively the business of the Federal Government. Transferring of the regulatory authorities does not fall within that and should have prior approval of the CCI. In this way he asserted Senate’s power and authority to look after the rights of the provinces and stopped the Federal Government to impinge upon their rights. The rulling clearly states that doing what the Federal Government did is a violation of the Constitution.

3.National Finance Commissions

National finance Awards are the distribution of national revenues between the provinces. As per  article 160 of the Constitution the National financial commission should be constituted at least every five years. This is to agree on the distribution. As the five year interval approached closure the new awards were not finalized. The meeting was held in April 2015 and the government took a stand that the constitutional requirement is to constitute the Commission and not necessarily have the consensus on the recommendations for the distribution.  Since it was a contentious issue for the province and the Federal government’s delay on the awards was a major concerns the Chairman Senate took the issue up for interpretation. After considering the details of the circumstances, keeping in mind the consequences of the delay in the awards and the provisions of the constitution the ruling was issued.

In summary it stipulated that only constituting the Commission does not satisfy the provision as the recommendation of the way the awards will be distributed has to be submitted to the President within the five year period. This ruling did not support the claim made by the Government and fully supported participatory federal government by protecting their rights.

4. Operationalization of Joint Ownership of Mineral Oil and Natural Gas

Implementation of Article 172 (3) of the constitution of Pakistan.
There was a disagreement in the point of view of the Federal government and the provinces regarding implementation of the above provision. Provincial meetings were held and views were collected, whereby it seemed that the provinces strongly felt that this provision had not been implemented. A reference was submitted for the Chair to clarify and interpreted the provision so that a consensus could be reached. After considering the point of views of all stake holders and review of the constitutional provision the chair ‘s ruling did not only clarified the intention of the provision added through the 18th amendment but also instructed that a new mechanism has to be established through an Act of Parialment which could be a regulatory authority with equal representation of the province to ensure a joint control over Oil and gas sector. The chair provided a clear interpretation of the clause instructions for future action and significance of the issue for smooth and harmonious relationship between provinces and with the Federal Government.