Daily Times

Furore over the interpretation of article 149 continues despite its clear and explicit language that Federal govt in order to exercise its own executive authority in the provinces could give directions in certain cases to the provinces. The article has three clauses and if it’s read with article 148 (2) of the Constitution, it shows that both the governments have mutual obligation that they shall exercise their executive authority in a manner that they may not prejudice the interests of each other.

The first clause of article 149 reads as follows:

149(1): Executive authority of every province shall be so exercised so as not to prejudice or impede the executive authority of the Federation, and the executive authority of the Federation shall extend to giving of directions to a province as may appear to the Federal government to be necessary for the purpose.

Now it is crystal clear that it talks of exercise of Federal executive authority in the provinces and not provincial executive authority.

The Federal executive authority is defined in article 97 of the Constitution as follows:

Art 97: Subject to the Constitution, the executive authority of the Federation shall extend to the matters in respect of which Parliament has power to make laws including exercise of rights, authority and jurisdiction in and in relation to areas outside Pakistan.

Provided that the said authority shall not, save as expressly provided in the Constitution or law made by the Parliament extend in any province to a matter with respect to which provincial Assembly has also power to make laws.

We would see in the above article that the executive authority of the Federal government is not only subject to the Constitution but it only extends to matters with respect to which Parliament has power to make laws. It does not even extend to three concurrent matters of criminal law, criminal procedure and evidence because Provinces can also legislate on these subjects.

Article 142(c) expressly prohibits Parliament from legislating on any matter except those mentioned in Federal list. Parliament can’t legislate on provincial subjects unless under article 144 provincial Assembly gives it that power and that power too is subject to the repeal of any Act of Parliament on provincial subject by provincial Assembly.

The Executive Authority of a province under article 137 of the Constitution has been defined as follows:

Article 137: Subject to the Constitution, the executive authority of the Province shall extend to the matters with respect to matters with respect to which Provincial Assembly has power to make laws.

The provincial Assembly under article 142 (c) has power to make laws with respect to matters which are not enumerated in the Federal List.

The Executive authority of both the Federal govt and provinces is co-extensive with their legislative powers. Moreso, Executive authority of the province also extends to three concurrent subjects of criminal law, criminal procedure and evidence unless expressly curtailed by an act of Parliament.

Now both the Federation and provinces have to exercise their executive authority in a manner that there is no conflict between them. It’s what article 148(2) says:

Article 148(2): Without Prejudice to the other provisions of this chapter, in the exercise of the executive authority of the Federation, regard shall be had to the interests of that province.

Similarly article 149 makes it incumbent upon the provinces to exercise their executive authority in a manner that It may not prejudice the a federal executive authority.

Federal executive authority under articles 149(3) and 149(4) extends to giving of directions to the provinces with regard to Construction of means of Communication and their maintenance as well as to directions with regard to peace, tranquillity and economic life of Pakistan if as a result of any act, the executive authority of Federation is affected in this regard.

Both the provinces as well as Federation have mutual obligation to respect each other’s executive authority and exercise it in manner that interests of both are served.

Article 149 speaks about the exercise of Federal executive authority in a province. Federal govt through it’s departments or subjects exercises its executive authority in the provinces. For example, Federal govt departments of shipping, aviation, Federal Banking, insurance, State Bank of Pakistan, Defence and Communication installations are located in the provinces. Article 149, therefore, asks the provinces that Federal executive authority over its subjects may not be hindered in any case. For example, there is blockade of roads leading to ports as a result of terrorist incident or other reason and the federal subject of shipping is badly affected, the Federal govt may give directions to the provinces to take measures as it would affect the economic life, peace and tranquillity of the country. Similarly, if for any reason the Federal Banking or operation of FBR or civil aviation or airports is affected for any terrorist act, civil commotion or any other reason, the Federal govt may give directions to the province because it would affect it’s own Executive authority.

Article 149 never aims at interfering with Executive authority of the province under the Constitution. It only relates to the smooth exercise of Federal executive authority in the province.

Similarly, article 148 clearly exhorts upon the Federal govt to exercise its executive authority with regard having to the interests of that province.

Federal government has formed a Committee on the matters of executive authority of the province which is not provided under the Constitution. It could have formed a Committee if it’s own executive authority was being affected like Banking, Shipping, FBR operations in Sindh. There is no such situation in the province as Federal govt has full cooperation of provincial government to exercise its own executive authority. The formation of Committee on provincial executive matters is a very dangerous precedent as only Province scan form a Committee under article 148(2 ) to examine the question whether Federal executive authority was being exercised in the interests of province. That would be perfectly legal as it is provided. Federal government could form a Committee under article 149 only to examine if its own executive authority is being challenged by provincial government. But by misinterpreting the article, it has formed a Committee to examine the matters within the executive authority of the Sindh government which is flagrant violation of the Constitution.

At no point, any govt in Sindh province has been challenge to Federal executive authority rather the actions of Mr Ali Zaidi, Federal Minister of Shipping squarely fall in article 148(2). He violated Constitution by interfering in the executive authority of a province. Similarly, Sindh govt can sack Mayor Karachi or speaker can suspend the membership of provincial Assembly members who sit in Federal Committee constituted illegally to deliberate on provincial executive authority.

It is in the interest of Federation that both provincial and Federal governments respect each others executive authority as provided in the Constitution.

It’s neither the scope nor ambit of article 149 to issue any direction to provincial government with respect to its subjects or provincial executive authority. It could only give directions if Federal executive authority is being affected which is not the case in present circumstances. Provincial executive authority is supreme and it can not be affected. There’s only one situation when provincial executive authority could be affected and that too temporarily. For that purpose too there’s difficult procedure requiring resolution of provincial Assembly. It is only under article 232 or 234 of the Constitution during emergency rule and even then laws made by Parliament cease to have effect in province under article 232(5) after six months of emergency imposed on province.

Federal government should immediately dissolve its unconstitutional Karachi Committee and Sindh govt should form its Cabinet Committee with experts from various fields to examine whether federal executive authority is being exercised in the interests of province as province feels that article 38(g) and 39 is being violated as it enjoins upon Federal govt to ensure representation of people of the province in its jobs and if they have less representation, address it through positive action.

The writer is Barrister-at-Law and former Advocate General of Sindh