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September 18, 2019

Article 149: an explainer

Opinion

September 18, 2019

Furore over the interpretation of Article 149 continues, despite its clear and explicit language that the federal government, in order to exercise its own executive authority in the provinces, can give directions in certain cases to the provinces.

If read with Article 148 (2) of the constitution, Article 149 shows that both the federal and the provincial governments have mutual obligation to 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.”

It is clear that the article talks of exercise of federal executive authority in the provinces – and not provincial executive authority. Federal executive authority is defined in Article 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 see in the above article that the executive authority of the federal government is not only subject to the constitution but that it only extends to matters with respect to which parliament has power to make laws. It does not even extend to the 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 the federal list. Parliament can’t legislate on provincial subjects unless under Article 144 the provincial assembly gives it that power and that power too is subject to the repeal by the provincial assembly of any act of parliament on a provincial subject.

The executive authority of a province under Article 137 of the constitution has been defined as follows:

“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 government and the provinces is co-extensive with their legislative powers. And the executive authority of the province also extends to the three concurrent subjects of criminal law, criminal procedure and evidence – unless expressly curtailed by an act of parliament.

Now both the federation and the provinces have to exercise their executive authority in a manner that there is no conflict between them. This is what Article 148(2) says:

“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 federal executive authority.

Under Article 149(3) and Article 149(4) federal executive authority extends to giving 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 the federation is affected in this regard.

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

Article 149 speaks about the exercise of federal executive authority in a province. The federal government through its departments or subjects exercises executive authority in the provinces. For example, the federal government 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, if there is blockade of roads leading to ports and the federal subject of shipping is badly affected, the federal government may give directions to the provinces to take measures since that could affect the economic life, peace and tranquillity of the country.

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.

The federal government has formed a committee 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 full cooperation of the provincial government with regard to the federal executive authority.

The formation of a committee 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 has now formed a committee to examine matters that fall within the executive authority of the Sindh government; this is flagrant violation of the constitution.

At no point has any government in the Sindh province been a challenge to the federal executive authority. Rather the actions of Mr Ali Zaidi, federal minister for shipping squarely fall under Article 148(2). His actions have interfered in the executive authority of a province.

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 present 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 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 unconstitutional Karachi Committee and the Sindh government should form a cabinet committee with experts from various fields to examine whether federal executive authority is being exercised in the interests of the province as the province feels that Article 38(g) and Article 39 are being violated.

The writer is a barrister-at-law and former advocate general of Sindh.

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