GMO-No! – A Constitutional Gridlock
It has been reported that the federal government has recently approved over one hundred varieties of genetically modified cotton and corn to be sold in the Pakistani market. If this is so, this has far-reaching repercussions not only along the cotton production chain, the nature of the food we consume but also Pakistan’s implementation of international environmental agreements and the very nature of our federal structure. Consider.
Genetically modified organisms (GMOs) like the Bt cotton, maize and corn approved by the government recently, as well as medical applications and a million other uses, are regulated internationally by the Cartagena Protocol of 2000. The Protocol requires GMOs to undergo risk assessment and risk reduction before they are imported, used or sold. Pakistan is signatory to the Cartagena Protocol and, in 2005, the government made the Pakistan Biosafety Rules to implement this international environmental agreement domestically.
The Biosafety Rules establish a three-tier system to ensure risk assessment and reduction: Institutional Biosafety Organisations that conduct field research, a Technical Advisory Committee (TAC) that evaluates applications for import, use or sale and a National Biosafety Committee (NBC) that is the final approving authority for GMO use in Pakistan. Under the Rules of 2005 it is the Secretary of the Ministry of Environment who is the ex officio Chair of the NBC and oversees its proceedings.
This regulatory framework saw the NBC begin functioning and start granting approvals for GMO use in Pakistan. In 2010, the NBC first issued licences for the commercial use of Bt cotton. It’s another story that unlicensed Bt cotton was used in Pakistan from as early as 2005. And it’s an irony that, even with the advent of these seed varieties, Pakistan’s single largest bumper crop of cotton was in 2004, a year before Bt cotton was introduced.
However, all this changed after the 18th Amendment to the Constitution of Pakistan, the single most important legal, economic and social intervention in Pakistani politics by a far. The Amendment was a response to the long-standing demand of the federating units – the provinces – to be devolved proper power and authority. The legislative and executive powers carried over from and exercised by the centre from the colonial period were given over to the provinces, as it should be in a healthy republic. Dozens of legislative subjects, including the environment and natural ecology, labour, health and education, were devolved to the provinces through the abolition of the ‘concurrent legislative list’. Since the federal government can only exercise executive authority over subjects it can legislate over, the Amendment also denudes the federation of executive authority over subjects not in the ‘federal legislative list’.
Where does this leave Bt cotton and GMOs? Well, the Pakistan Environment Protection Act, 1997 (PEPA) was passed by Parliament because, at the time, the subject of environmental pollution and ecology was listed in the ‘concurrent legislative list’ and so Parliament had the power to make a federal law over it. Article 270AA(6) – inserted by the 18th Amendment – stipulates that notwithstanding the omission of the ‘concurrent legislative list’, any laws passed on subjects enumerated therein, like PEPA, would continue to remain in force until altered, amended or repealed. But since the 18th Amendment of 2010, all four provinces have passed laws either altering or amending PEPA.
What that means is that PEPA no longer applies in the provinces. And neither do any rules or regulations – such as the Pakistan Biosafety Rules, 2005 – made or passed under it. In fact, the Punjab Environmental Protection (Amendment) Act, 2012, the Balochistan Environmental Protection Act, 2013 and the Khyber Pakhtunkhwa’s Environmental Protection Act of 2013 all confer onto their respective provincial governments the power to implement international environmental agreements, including the Cartagena Protocol. The government of Punjab has exercised this power and has even notified the Punjab Biosafety Rules, 2014.
The devolution envisaged by the 18th Amendment also saw the abolition of many federal ministries related to subjects now in the exclusive domain of the federating units. A number of ministries were abolished, including the Ministry of Environment. In its place, a new Ministry of Climate Change was established.
With no Ministry of Environment, there is no Secretary who can, ex officio, chair the NBC. Which means the federal government has no executive authority when it comes to GMOs in the provinces. Nor can the NBC grant licences for GMOs. Especially in Punjab in the presence of that province’s own biosafety rules that allow only its own Biosafety Committee to approve applications for the commercial use of GMOs such as those ostensibly approved by the federal government recently.
The gridlock emerging from the 18th Amendment has meant that the TAC and NBC, which met regularly until 2010, have not functioned since, with the exception of the recently reported approvals. Bt cotton, which makes up about 85 percent of all the cotton sown in Pakistan, has therefore not been able to benefit from risk assessment and reduction oversight in the past four years. Is it coincidence that low-quality seed has been blamed for the collapse of this year’s cotton crop?
If there is lack of regulation of GMOs, then what is one to make of the recent approval of GM corn and maize? This is the first time anyone has approved GMOs in a food crop. Have proper tests been conducted? Is our health and environment protected? Does a proper regulatory system exist that can ensure that the risk assessment and mitigation mandatory under the Cartagena Protocol is taking place? According to the minutes of the 18th meeting of TAC in 2014, the project funding for the National Biosafety Center ended on 30 June 2014 and the TAC “strongly recommends National Biosafety Center may be transferred to the non-development side”.
Pakistan’s enforcement of the Cartagena Protocol is no light responsibility. GMOs – though beneficial in many cases – must be properly regulated. But this isn’t just about our environment or health. It’s also about Pakistan’s eligibility under the European Union EU’s GSP+ preferential trade status. The EU requires Pakistan to comply with a number of international agreements, including the Cartagena Protocol. What will happen if it is found that Pakistan is not in compliance?
The 18th Amendment may have given the federating units the powers they had so long sought. But it also provides for when the federating units may request the centre to intervene. A resolution by a provincial Assembly requesting Parliament to pass a law on a provincial subject gives Parliament the right to do so. The implementation of the Cartagena Protocol is not the only issue at stake here.
Pakistan is signatory to a number of international environmental agreements – from Ramsar to Basil to Rio. Do the federating units have the capacity and capability of properly implementing these when they have absolutely no experience in doing so? Wouldn’t it be proper if at least one federating unit thought it wise for the federation to continue implementing international environmental agreements?
The federal government would legally continue to do so, with the participation of the federating units ensured. There is a way out of this gridlock. But the private-sector stakeholders who haven’t understood the deeper meaning of the 18th Amendment are only digging themselves deeper into it.
This article was previously published in The News and is being republished here with permission.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.