Government by ordinance

US President Donald Trump has taken cover of issuing executive orders whenever he lacks required votes in the Congress. Every executive order has faced the courts since it lacks legal cover because the president is to follow the law, and not make the law.

We are seeing the same in Pakistan these days where it seems some unknown elements in the cabinet use the presidency for issuing ordinances, at times almost in violation of the constitution. One glaring example of such unconstitutional ordinances was the forming of the National Finance Commission and it’s Terms of References (ToRs); it was later set aside by the Balochistan High Court.

Pakistan’s president represents the federation of the country; the office should protect the constitution and should refrain from ordinances which are framed above and beyond constitutional limits. Ordinances cannot be substitutes to law, and cannot rewrite the constitution. The presidency is not a law making-office; that is entirely the job of Pakistan’s parliament. Ordinances are generally viewed as temporary authorization to government when parliament is not in session.

There appears to have been no emergency whatsoever that the president had to issue an ordinance to establish the Pakistan Coastal Development Authority, which to many is in violation of what the existing constitution says about the ownership of the coastal belt, including islands; the ordinance transfers ownership to the federal government. One wonders at the haste and secrecy around the ordinance, without debate and dialogue within parliament and with the provinces where the islands physically lie.

If the federal government had ideas about developing the coastal belts, it should have engaged Sindh and Balochistan, which historically own the coast of the country. The center is dominated by elected leaders from the north of the country, while the coast lies in the south of the country. Without talking about what kind of development, what was the urgency in issuing an ordinance that only invites backlash, resentment and outrage?

Thousands of workers of the Awami Tahreek, men and women, were on the roads of Karachi – raising their voice against what they rightly call the unconstitutional takeover of provincial land. The federal government cannot extend its authority over territory in the provinces; the move rightly angered PPP Chairman Bilawal Bhutto Zardari who equated this ordinance with Modi’s actions. Even the worst dictatorial regimes in Pakistan have not treated provinces in such a manner.

Sindh’s political forces, civil society, fishermen non-profits and even the ruling Pakistan People’s Party, opposition parties, even those part of the Grand Democratic Alliance (coalition partner of the PTI) have rejected the unconstitutional Coastal Development Authority. The reason is that under the constitution land is a provincial subject. The center can acquire land from provinces for certain needs, but it has to be approved, and the center cannot claim its control over the land under whatever pretext.

It is totally absurd to assume that a port authority would claim its right over provincial land. Port Qasim was established in Karachi, land given by the provincial government for a well-defined purpose; but the center cannot determine to what extent and how far land it can grab and exercise control.

The establishment of Port Qasim displaced thousands of people, with the promise that their lives would change over the course of time – which never happened. Rather, a country club was set up and those villages have been reduced to slums where vicious poverty mars children and women. Port Qasim port did bring billions of rupees in revenue for the rest of the country, but the locals did not receive a portion of its earnings, and fishermen lost access to fishing, their livelihood.

Sindh did not receive even one percent share in its revenue earning. The port greatly contributes to the foreign trade of Pakistan, it is an economic life-line of Pakistan, but what does Sindh get from its revenue? It is great injustice that the port is in Sindh but its revenue is taken by the center and then shared among the provinces under the basis of population. The formula again benefits Punjab, and that is how under a well-structured system of extraction resources are transferred from southern provinces to the north. In most of the federal polities, including the United States of America, ports are a provincial/state subject, and the center does not control ports and their revenue.

One sees a pattern in the act of usurpation of provincial resources by the center whereby provinces are caught by surprise when such takeovers are announced. The ordinance, most probably, would be thrown out in the first court hearing as it is in the violation of the constitution, but the anger it has created within the hearts and minds of people in Sindh will only fuel more resentment and disharmony.

According to Barrister Zamir Ghumro, former advocate general of Sindh, “the federal government, with reference to constitutional Article 239, sub clause 4, cannot send any bill concerning area in the provincial territory. The framers of the constitution laid out clearly defence of provincial territory against [the] center’s overreach. Because of these considerations, representatives from Balochistan, Khyber Pakhtunkhwa and signed the 1973 constitution on August 14. The ordinance in reference attempts to undo the constitutional protection to provinces. “

As we have seen over the decades, the federation is not only weak but unequal in Pakistan. The center holds way more power than envisaged in the constitution. Pakistan’s federal cabinet is four times bigger than the United States; it is not just size that will make a difference, it is sincerity, competence and policy that improve governance and ministries. It is ironic that the PTI-led coalition instead of focusing on the existing problems, addressing the economic slowdown, mounting debt, deficit and contracting GDP, has set its eyes on more power and resource grab from the smaller provinces.

Email: mush.rajpar@gmail.com

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