Islamabad High Court (IHC) has directed Ministry of Science and Technology (MCT) to take appropriate measure to ensure that Punjab Food Authority (PFA) fulfill its commitments under the umbrella of World Trade Organization (WTO) regarding standards of ghee and cooking oil in line with the WTO regime.
Sources told Business Recorder here on Saturday that IHC admitted a written petition filed by Pakistan Banaspti Manufacturers Association (PVMA) and issue an appropriate interim order against the PFA. A legal expert informed that Ministry of Science and Technology may, in compliance with the said IHC order, issue notices to Punjab government as well as Punjab Food Anthony at the earliest, directing them to cease the unlawful actions against the Banaspati and cooking oil manufacturers who are licensees of Pakistan Standards Quality and Control Authority (PSQCA). IHC has issued the direction in light of Article 149 of the Constitution.
IHC has directed Ministry of Science and Technology to take measure with respect of advertisement published by PFA against the manufacturers of ghee and cooking oil and fulfill its commitments under the umbrella of the WTO. The court order said that the petitioner is aggrieved on account of inaction on part of the federal government, to fulfill its obligations inter-alia, under Articles 149 and 143 of the Constitution.
The counsel of the petitioner, inter-alia, contends that the actions and proceedings taken by the respondents No 3 (PFA) and 4 (Government of Punjab) are impeding obligations of the State of Pakistan pursuant to its commitments made under the umbrella of World Trade Organization. The counsel has stressed that uniform standards prescribed by the Pakistan Standards and Quality Control Authority Act, 1996 are being violated. The counsel has further contended that writ has been sought from court to the Ministry of Science and Technology to fulfill its obligations by directing the PFA and government of Punjab, the remove the inconsistencies.
Let notice be issued to the respondents for filling report and parawise comments, IHC order said. Meanwhile, Ministry of Science and Technology is directed to take appropriate measures, inter-alia, in respect of the advertisement published by the PFA 3, to fulfill its commitments under the umbrella of the World Trade Organization, IHC order added.
Explaining background of the issue, a legal expert said that Banaspati and conking oil manufacturers of Pakistan are licensees of the Pakistan Standards Quality and Control Authority (PSQCA), established under the Pakistan Standards Quality and Control Act, 1996. The PSQCA provides detailed standards for all licensees which must be strictly adhered to. As per the Rules of Business, 1973 the PSQCA is under the mandate and control of the Ministry of Science and Technology.
The PSQCA was established in 1996, after Pakistan became a member of the world Trade Organisation (WTO), and is affiliated with the WTO among other international organizations. The standards set out by the PSQCA are in line with the WTO Technical barriers to Trade Agreement (hereinafter the "TBT" Agreement"), to which Pakistan is a signatory. Article 2 of TBT Agreement imposes an obligation on the Member State to ensure compliance of the obligations 'Central Government' to ensure compliance with the requirements thereof. Furthermore, Article 3 provides that Member States must ensure that inter alia the 'local government bodies' are complying with the TBT Agreement and are not encouraged to act in contravention thereof.
However, the Punjab Food Authority (PFA) has been exercising unlawful jurisdiction over the licensees of the PSQCA, and has been taking adverse action against them without following due process. In this regard, a public notice dated May 28, 2017 has been issued, defaming certain Banaspati and cooking oil manufacturers. More alarmingly, the PFA has been imposing standards which are in contravention of the Standards set by the PSQCA and blatantly violate Pakistan's international commitments and obligations under the TBT Agreement and as a member of the WTO.
PSQCA Act has been enacted pursuant to item 32 of the Federal Legislative List as it is an implementing legislation for provisions of international treaties relating to uniform standards as provided for in the WTO TBT Agreement. That by virtue of Article 142 read with item no. 32 it is clear that only the Federal Government has the Legislative competence to make law for implementation of international treaties and the provincial legislation cannot tread in this domain at all notwithstanding the devolution of a subject to the province. In other words while food as a subject has been devolved to the provinces but the legislative competence for setting standards in respect of food manufacturing, as well as notifying and implementing them are retained by the Federal domain.
The federal government by not issuing a direction to the provincial government to bring changes to the PFA Act is effectively failing to perform its constitutional obligation under Article 149 of the Constitution as on account of said failure, the exercise of the executive authority of the federation to implement international legal commitments stands impeded.
PSQCA Act implements in Pakistan the WTO TBT Agreement. The said agreement creates an obligation on the State Parties to it to ensure standardization and absence thereof will be viewed as a trade barrier. In this regard the Petitioner refers to the text of TBT Agreement which is annexed herewith. In this context it will be noted that the provincial enactment by introducing an alternative and non-conforming standard is effectively in violation of Pakistan's treaty commitments under International Law and therefore the same needs to be struck down on this ground alone.
PSQCA operates in complete conformity with WTO agreement particularly the TBT Agreement. Its standards are accepted by WTO whereas no provincial entity including the PFA has any linkages with WTO, nor has it obtained approval for its standards from WTO. As it stands the provincial regime creates duplicity of standards that is generating confusion for the consumer, manufacturer, and importer/exporter, as well as violating Pakistan's international commitments.
The international commitments incurred by the Federation of Pakistan create limitation on the Legislative competence of not only the Federal Parliament but also the Provincial Assemblies, and neither can legislate contrary or beyond the scope of international commitments that the federation has undertaken with the international community through a multilateral instrument or any other valid legal mechanism. The provisions of PFA Act to the extent of innovating standards different from the PSQCA are thus violation of international legal commitments and the continuation of the same will make Pakistan a non-compliant state and accordingly the same need to be struck down on this ground alone.
Accordingly, aggrieved by the harassing tactics of the PFA and its officers the Pakistan Banaspati Manufactures' Association preferred a Written Petition in the Islamabad High Court on behalf of its members. Therein the Ministry of Science and Technology was impleaded as Respondent no.1. Islamabad High court has been pleased to admit the Writ Petition and issue an appropriate interim order.
The Interim Order, IHC has held that meanwhile, Ministry is directed to take appropriate measure, inter alia, in respect of the advertisement published by the respondent no.3 (Punjab Food Authority) to fulfill its commitments under the umbrella of the World Trade Organization.
The Ministry is hereby notified o the aforesaid direction issued to it by the IHC. It is requested that the Ministry may, in compliance with the aforesaid order, issue notices to the Government of Punjab as well as the Punjab Food Anthony at the earliest, directing them to cease the unlawful actions against the Banaspati and cooking oil manufacturers who are licensees of PSQCA.
Islamabad High Court has issued the direction in light of Article 149 of the Constitution of Pakistan, 1973. It is pertinent to highlight that despite the initiation of the proceedings in the IHC and the intern order dated 09.06.2017 the Punjab Food Authority has issued 'Prohibition Order' dated 11.06.2017 to members of the Pakistan Banaspti Manufacturers' Association. Other coercive action has also been initiated, including removal of products of the licensees from the open market etc, lawyer added. In view of the foregoing, timely action is necessary in order to ensure to ensure effectiveness of the order of the Islamabad High Court.
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