Repeal it with the power you possess or confess to the people (who voted you in) that you have abjectly surrendered their rights. Wake up or stop this hypocrisy!
The promulgation of an Ordinance for the establishment of “Federal Island Authority” has baffled the people of Sindh and Balochistan. The two coastal provinces own hundreds of Islands in their waters. These fall under their sole ownership. Their rights to ownership are clearly and unequivocally spelled out under Article 172 of the 1973 Constitution.
There is a straightforward and easy constitutional method for repealing any Federal legislation on any Provincial subject: By passing an Act of the Provincial Assembly under article 144 of the Constitution.
Unfortunately, the Provincial Assemblies stopped shy of repealing the Federal Ordinance and instead passed resolutions which are not legally binding.
It’s not only surprising but rather shocking that the members of the Provincial Assemblies are ignorant of the basic and crucial power under the Constitution. It is this depth of ignorance, obliviousness, and intellectual laziness in understanding the “power of lawmaking” that has allowed Islamabad to encroach upon the domain of the Provinces. This must be put to an end as soon as possible and once and for all.
The Division of powers between the Centre and the Provinces is extremely simple and easy to understand. Article 142 of the Constitution explains this simple division as follows:
a. Parliament shall legislate on subjects enumerated in the Federal Legislative list in schedule IV of the Constitution (Federal Subjects)
b. Parliament and Provincial Assemblies both shall legislate on three subjects, namely Criminal Law (PPC), Criminal Procedure Code and Law of Evidence.
c. Provincial Assembly shall and Parliament shall NOT legislate on subjects not enumerated in the Federal Legislative List (a.k.a Provincial Subjects).
Simply, ‘Provincial Subjects’ those that are not included in the Federal list.
It is important to emphasize here that the Provinces have the unique power to repeal an Act of Parliament on any Provincial subject. Whereas the Parliament does NOT have the power to repeal an Act of Provincial Assembly
Provincial autonomy, by definition, means all subjects belong to the provinces except those GIVEN to the Federation by the Provinces and then enumerated in the Federal Legislative List.
This means that Pakistan’s Provinces are in fact sovereign States, not unlike the States that comprise the Federation of the United States of America.
It is important to point out here that the 52 states of the USA have governments that exercise all powers. The Federal government that sits in Washington DC (as ours does in Islamabad) is simply a government of enumerated, listed powers.
The Centre only has powers that have been granted to it by the Provinces/States and this is reflected in the fact that each state has and proudly flies its own unique flag (along with the flag of the Federation). This in itself clearly denotes that these are independent sovereign entities who pulled together to form a Federation.
Similarly, the Centre’s powers in any Federal Government, such as Pakistan, are limited by enumerating them in the Federal list. Unfortunately, this realization has not yet seeped through to our lawmakers, intellectuals and civil society at large.
Rather, it has been aggressively and actively distorted by the repeated impositions of Martial Law and disruption of civilian rule. It is largely misunderstood by all sections of society and has been at the mercy of a cleverly crafted state narrative that seeks to keep the masses brain washed in confusion and fear.
The state narrative emanating from Islamabad makes people think that Islamabad “grants” powers to Provinces. Whereas in truth it is the other way around. The provinces deliberately and concertedly relinquish a few powers to the Centre in their mutual and common interests.
Provincial governments are the co-ordinate governments in a Federation. They are not in any way subservient to a Federal government. Under International Law, the concept of Federal government is that of a fictional one whereas Provincial Governments are regarded as original bona fide governments.
The power of the Provinces to legislate the provincial subjects is exclusive, barring two situations:
1: Parliament can legislate on a provincial subject during a legal emergency imposed under article 232 and 234 of the Constitution.
2: If one or more Provincial Assemblies pass resolutions empowering the Parliament to regulate a provincial subject.
In both the above situations the time frame of these actions and caveats have been clearly provided in the constitution: Emergency Legislation by Parliament on any provincial matter ceases to have effect after six months of emergency. In case Provinces give power to parliament to regulate a provincial subject through resolutions of Provincial Assembly, they can amend or repeal such Acts of Parliament any time under Article 144 of the Constitution.
The Constitution not only prevents Parliament from legislating on any Provincial subject under Article 142 but even allows those Provinces that give such power to Parliament on their own accord to repeal such an Act of Parliament at ANY TIME under Article 144 of the Constitution.
It is important to emphasize here that the Provinces have the unique power to repeal an Act of Parliament on any Provincial subject. Whereas the Parliament does NOT have the power to repeal an Act of Provincial Assembly. Article 144 reads as follows:
144: If one or more Provincial Assemblies pass resolutions to the effect that Parliament may by law regulate any matter not enumerated in the Federal Legislative List in the fourth Schedule, it shall be lawful for the Parliament to pass an Act for regulating that matter accordingly, but any act so passed may, as respects any province to which it applies, be amended or repealed by an Act the Assembly of that Province
If the Parliament/National Assembly or the President has the power to legislate on provincial subjects too (as well as Federal subjects) why go through the futile exercise of having Provincial Assemblies?
This is reflective of the essence of power and genesis of a federation that only comes into existence when independent nations or states come together to form a federation as happened in the case of Pakistan in 1947. Provinces were and are still autonomous. They not only have the exclusive power to legislate on provincial subjects but they can also repeal any act of Parliament on any Provincial subject.
Unfortunately, there is widespread ignorance of this basic and fundamental power of the provinces. This has enabled the President to promulgate Ordinances and allowed Parliament to legislate on provincial subjects in contravention of the Constitution.
Recently two ordinances have been promulgated on the exclusively provincial subjects of housing and the territorial waters of Pakistan:
1: The Naya Pakistan Housing and Development Authority Ordinance 2019
2: The Island Authority Ordinance, 2020
Both violate Article 142 © above under which Parliament (including President) have been barred from legislating on any provincial subject.
It is shameful that in spite of the existence of Article 142 the President was advised to promulgate both these Ordinances. It is EVEN MORE unbecoming that the Provincial Assemblies instead of exercising their vital and crucial powers (that allow them to repeal these Ordinances) simply passed (non legally binding) resolutions instead.
Was this done to please Federal authorities? One can only wonder whether members of both Sindh and Balochistan Provincial Assemblies (and governments) were ignorant of their great power to repeal an Ordinance or Act of Parliament (on any Provincial subject). OR were they willingly acquiescing to these plundering acts of the Federal authorities, to retain political power.
The laissez faire attitude displayed by legislators towards valuable provincial assets can only be ascribed to pure ignorance or promises of underhand understanding.
Regardless, the people of both the provinces have been misled and put in a predicament due to the subservient role of Provincial Assemblies. Members of the Provincial assemblies know well how to ring hollow on provincial rights and even get media attention for it. However, when it comes to exercising legal and constitutional powers, that they ALREADY possess, by virtue of being elected by the votes they received, they hoodwink the people.
It is hard to believe that a majority of ministers, legislators and even nationalist (Quom Parast) politicians are unable to grasp the simple scheme of division of powers between the Federal government and the Provinces.
It can be encapsulated in just one line: The Provinces have exclusive power to legislate on provincial subjects and they can repeal any act of Parliament on any Provincial subject. This is the essence of provincial autonomy enshrined in the Constitution even much before the 18th amendment was passed.
If the Provincial Legislators are so lazy, ignorant, or helpless to exercise their powers under the Constitution which allow them to repeal Federal Legislation on provincial subjects, they should immediately stop the hypocrisy of demanding more autonomy.
Strangely enough, not a single politician from the provinces opposed the Naya Pakistan Housing Development Authority Ordinance on the ground that it has been unconstitutionally promulgated on a provincial subject of Housing. Rather, they opposed it on the premise or conjecture that the PTI government won’t be able to deliver on its promise of 5 million houses!
If the Parliament/National Assembly or the President has the power to legislate on provincial subjects too (as well as Federal subjects) why go through the futile exercise of having Provincial Assemblies?
Pakistan’s (unanimously) passed 1973 constitution not only prohibits Parliament (under Article 142) from legislating on Provincial subjects but even empowers the Provincial Assemblies to repeal any Federal legislation on any provincial subject.
To understand this one does not need to be a rocket scientist. It is a simple and basic concept enshrined in the Constitution. The members of the Provincial Assemblies of Sindh and Balochistan should stop hoodwinking their people on the issue of the “Island Ordinance”. Repeal it with the power you possess or confess to the people (who voted you in) that you have abjectly surrendered their rights. Wake up or stop this hypocrisy!
The author is a former Advocate General of Sindh and Tweets @zamirghumro
The views are personal
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