ISLAMABAD: The Supreme Court on Monday expressed dismay over shutting down of business activities by the provincial governments, wondering if their decision was against the mandate of the Constitution.

Citing Fourth Schedule from the Constitution that deals with the Federal Legislative List (FLL), Chief Justice Gulzar Ahmed questioned which authority had empowered the provincial governments to encroach upon the revenue generation domain of the federation and that too without prior concurrence of the president or the federal government.

Also not satisfied with the outcome of the national coordination committee meeting, which was presided over by Prime Minister Imran Khan and attended by all the four chief ministers and other stakeholders, the Supreme Court observed that the April 14 meeting only identified certain Standard Operating Procedures (SOPs) instead of adopting a proper policy.

The five-judge bench, headed by the Chief Justice of Pakistan, expressed the hope that all the respective governments would sit together again to frame a uniform national policy.

Apex court urges a uniform national policy

The SC had taken up the case suo motu relating to measures taken by the federal and the provincial governments for preventing the spread of the novel coronavirus (Covid-19).

Looking at the current situation when the entire business activity and economy had come to a standstill, it seemed as if the governments had been conspiring against people, the CJP observed, adding this was total exploitation.

Attorney General Khalid Jawed Khan pleaded before the Supreme Court that currently the country was passing through an extraordinary situation and it was like the country was in a state of war. Therefore, he said, such matters at best were left at the political arena for which the most appropriate forum was parliament.

During the hearing, Justice Umar Atta Bandial observed that in all previous proceedings, the court had noted and been pointing out that there must be coordination between the Centre and the provinces, which should identify the issues and make uniform plan.

The policies and plans then were implemented through local bodies as there had always been an element of corruption if left to individuals, he observed.

The CJP was also asking for transparency and unified criteria, Justice Bandial observed, but regretted that the executive was not applying mind rather showing knee-jerk actions and posing as reactionary instead of taking pre-emptive or anticipatory measures.

He said there was hubris and arrogance without the realisation of its consequences. “Going through the language of the statements being issued, one understands who does not want to talk,” he remarked.

When such type of situation emerged, the Constitution provides the formula that the governments sit and talk with each other, he said. But there was arrogance all over, Justice Bandial observed, adding the SC was concerned over the interests and fundamental rights of people. “We are here to look after and protect the rights of people.”

“We can give one week to chalk out a plan or we will give some interim order,” Justice Bandial observed, while emphasising on the resumption of inter-provincial trade. He remarked that as people could not travel in their own vehicles, they were moving in trucks and paying hugely for this. People couldn’t come in car through highways or motorways, because they were stopped and charged by the police for this, he regretted.

He said the people were resilient as they overcame the 2005 earthquake and the 2010 floods, but they must not be put in another calamity because of someone’s hubris.

The CJP observed that the executive orders were meaningless until the government would legislate and reemphasised on developing national consensus. He said the intentions of the prime minister and the president must be good, but nothing was coming out.

The court was also not happy with the Sindh government’s decision to open business or trade on receiving applications saying this contravened the provisions of the constitution as well as against the fundamental rights and also lacked transparency.

During the hearing, Advocate General for Sindh Salman Talibuddin conceded that though they had invoked Pandemic Act 2014 to close down business centres and impose lockdown, the law did not override the provisions of the Constitution.

The provinces, however, agreed to argue on this point on the next date of hearing.

Published in Dawn, May 5th, 2020