By Zamir Ghumro
Similarly, if for any reason federal banking or the operation of the FBR or civil aviation or airports is affected by any terrorist act, civil commotion, or any other reason, the federal government may give directions to the province because that would affect federal executive authority.
Article 149 never aims to interfere with the executive authority of the province under the constitution. It only relates to the smooth exercise of the federal executive authority in the province. Similarly, Article 148 clearly exhorts upon the federal government to exercise its executive authority with regard to the interests of that province.
Schedule IV of the Constitution separates the federal and provincial distribution of subjects. The federal legislative list is earmarked as a federal domain. There are two parts to the federal legislative list. FLL part I is entirely a federal domain whereas FLL part II is a common domain of Counsel of Common Interest between a federation and the provinces. Then, owing to the sensitivity of the federation, the common domain of CCI has also been handed over to the federation. Therefore, the federation has legislative competence on the FLL whereas residuary powers are handed over to provinces and the latter enjoy the constitutional authority on the residuary subjects. As executive authority stands on legislative authority; therefore, the executive authority federation and provinces separate exclusively on the respective domains.
The federal government often forms committees on matters that come under the executive authority of a province, something that is not provided under the constitution. It could have formed a committee if its own executive authority was being affected like banking, shipping, FBR operations in Sindh, etc. There is no such situation in the province as the federal government has the full cooperation of the provincial government with regard to the federal executive authority.
The formation of committees on provincial executive matters is a very dangerous precedent; only provinces can form a committee under Article 148(2 ) to examine whether the federal executive authority is being exercised in the interests of the province. That would be perfectly legal. The federal government can form a committee under Article 149 only to examine if its own executive authority is being challenged by the provincial government. But by misinterpreting the article, it often forms committees to examine matters that fall within the executive authority of the provincial governments; this is a flagrant violation of the constitution.
At no point has any government in the province been a challenge to the federal executive authority. Rather the actions of the federal government, and federal minister for shipping squarely fall under Article 148(2). On many occasions, federal ministers interfere with the executive authority of a province.
For example, the Sindh government has the right to sack the mayor of Karachi or the speaker can suspend the membership of provincial assembly members who sit in a federal committee constituted illegally to deliberate on provincial executive authority.
It is in the interest of the federation that the provincial and federal governments respect each other’s executive authority as provided in the constitution.
It is neither the scope nor the ambit of Article 149 to issue any direction to the provincial government with respect to its subjects or provincial executive authority. It can only give directions if federal executive authority is being affected – which is not the case in most circumstances. Provincial executive authority is supreme and it cannot be affected.
There is only one situation when provincial executive authority can be affected and that too temporarily. For that purpose, too, there’s a difficult procedure requiring a resolution from the provincial assembly. It is only under Article 232 or Article 234 of the constitution during the emergency rule and even then, laws made by parliament cease to have effect in a province under Article 232(5) after six months of emergency.
The federal government should immediately dissolve its all-unconstitutional Committees and the provincial governments should form cabinet committees with experts from various fields to examine whether federal executive authority is being exercised against the interests of the province as the provinces feel that Article 38(g) and Article 39 are being violated.
Concluded…
The writer is a barrister-at-law and former advocate general of Sindh.
