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.
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 And that such a law has altered, amended or repealed the federal law?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.
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.”
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