LAW
Of late some concerns have been raised regarding the federal government’s recent approvals of genetically modified cotton and corn to be sold in Pakistan. Did the government have the mandate to give these approvals or the matter was solely within the provincial government’s power? In giving such approvals, did the government pay due regard to its international obligations of risk assessment and reduction as mentioned in the Cartagena Protocol of 2000? And lastly, who has the mandate to enforce international agreements -- the federation, its federating units or both? It is important to bring some clarity regarding these questions from a legal and constitutional standpoint.
No doubt, the passing of the 18th Amendment to the constitution resulted in provincial autonomy- in that the provinces were given more power to legislate and exercise executive authority over certain subject matters, including the environment, which power was exercised by the centre pre-18th amendment scenario. However, at the same time the relevance of Article 270AA(6) (Declaration and Continuance of laws etc.), which allows for a law to continue to remain in force even after the 18th amendment until altered, amended or repealed by competent authority, must not be understated or undermined. This provision was inserted in the constitution in order to ensure that a mechanism would continue to be available to individuals to enforce their rights unless and until an alternative mechanism was put in place replacing the former. The idea was simple. At no point in time can persons be left with no law regulating their affairs and enforcing their rights. To allow this would jeopardize the rights of many persons and leave them in a state of lawlessness, which is contrary to the mandate and the spirit of devolution under the 18th amendment.
It must be recalled that provisions similar in scope to Article 270AA (6) have continued to be inserted in earlier constitutions as well, including the interim constitution of 1972.
Although at least two provinces have passed their respective environmental laws, no mechanism, such as a Provincial Biosafety Committee to approve applications for the commercial use of GMOs has been constituted, for its enforcement to date. Therefore, for all means and purposes, there is no functional regulatory framework and body of the provincial government that regulates the processing of GMO applications. It is not desirable that such a matter which concerns fundamental rights of individuals be left unregulated by law for long period to time.
In the case of seeking approval of the GMO’s, the matter involves a stakeholder’s fundamental right to trade, business and profession as guaranteed under Article 18 of the constitution. In such circumstances it is important to consider a few questions: Should such a stakeholder have no recourse to justice till a new functional regulatory body under the mandate of provincial legislation is made? Should the business wait in anticipation a year, two or three till such a body comes into existence? Would it not be lawful and just for such an individual to seek recourse through the federal body which remains in existence and has been since the past decade? It is also to be noted that the essence of any law is not merely for it to be passed but that there is machinery in place for its implementation. Can it really be said that a non-functional law is actually a law ‘passed’ to begin with? And that such a law has altered, amended or repealed the federal law?
With the exception of Punjab, no other province has even passed any biosafety rules under which a biosafety committee is to be formed. In the absence of any system of regulation at the provincial level, is it just and fair or even legal to suspend indefinitely the operation of the federal law for necessary approvals sought by individuals of any of the provinces? It is to be noted that it is jurisdictional deficiency of the provincial government to facilitate and regulate the exercise of the fundamental right by establishing a regulatory framework for determining the granting or otherwise of GMO’s. The only way to make available the right to trade, business and profession to those individuals seeking genuine approval for their businesses is by approaching the Federal Regulatory Body, which is the NBC. The federal environment legislature and its duly formed federal regulatory body is the only forum that can address the situation at hand and fill in the legal vacuum created by provincial governments inability to constitute their own biosafety committees. There has to be a legal forum, such as the NBC to facilitate and regulate the exercise of the fundamental right as guaranteed by Article 18 of the constitution.
The national biosafety committee ensures that risk assessment and mitigation mandatory for the approval of GMO’s under the Cartagena Protocol is observed, i.e. the National Biosafety Committee. Proper test and field trials are conducted before the approval of GMO’s are given. There is nothing apparent which shows otherwise, and therefore, the competency or the ability of the federal government’s NBC to grant GMO’s cannot be questioned.
Independent of the above facts, there are also other aspects of the constitution which point to the lack of competence of provincial governments to promulgate biosafety rules. This is based on the fact that, the provinces cannot enforce international obligations because they do not have the mandate under the constitution to implement international environmental agreements. In the federal legislative list of the constitution, (a list which mentions various subject matters on which the parliament can exclusively legislate upon), entries 3 and 32 gives the parliament the legislative competency with respect to the Implementation of international agreements, such as the Convention on Biological Diversity, Rio de Janiero, 1992, under which the Cartagena Protocol was made. This remains unchanged post 18th amendment as well. Therefore, the National Biosafety Rules 2005 promulgated by the federal government for the purposes of implementing international environment agreement obligations, remain valid. As per Article 142(a) of the constitution, this power lies exclusively with the federation. Therefore, potential concerns can be raised regarding the constitutionality of the Punjab Biosafety Rules 2014, which were promulgated under section 31 of the Punjab Environmental Protection Act, 1997. This purportedly gives the power to provincial governments to make rules for implementing the provisions of the international environment agreements such as the Convention on Biological Diversity, Rio de Janiero 1992.The provinces cannot expressly exercise this power under the constitution.
Even if it is assumed that the provinces have such powers, this would lead to duplication of powers where the federation will be able to make rules for implementing the provisions of the international environmental agreements under section 31 of the Environmental Protection Act, 1997 while Province will have similar powers e.g., under section 31 of the Punjab Environment Act, 1997. So which one would prevail? The constitution itself provides the answer in the proviso to Article 137 stating that “in any matter with respect to which both [Majlis-e-Shoora (parliament)] and the provincial assembly of a province have power to make laws, the executive authority of the province shall be subject to, and limited by, the executive authority expressly conferred by the constitution or by law made by [Majlis-e-Shoora (parliament)] upon the federal government or authorities thereof.”
We have already seen that a lack of regulation for a period of four years post 18th amendment has raised safety concerns regarding the sowing of unapproved BT cotton, despite two provinces having passed their respective environmental legislations. The reason for such ignorance of the health and safety of the citizens of Pakistan is the lack of putting in place effective machinery by the provinces. And that sadly remains the case to date. If the provinces are unable to approve applications for the commercial use of GMOs and the federation is being told they are not allowed to make this assessment because of the misinterpretation of the 18th amendment, then who will? It is important to consider who is protecting the rights of the persons in this situation? Or should the persons continue to wait indefinitely for the biosafety committees of all four provinces to become functional? We cannot complain about the non-functionality and functionality of the NBC in the same breath, especially after being aware of the adverse effects of absolutely no form of regulation.
It is only logical and lawful to suggest that at all times; some form of regulation must exist, be it federal or provincial or else it would severely compromise the fundamental rights of individuals as enshrined under Article 18 of the constitution. Such is the spirit of Article 270AA (6) of the 18th amendment as well.
The writer is a law practitioner
