Our provincial governments love their notifications, especially in these grave COVID-hit times. These governments have been dishing out notifications like our Pakistani game show hosts do in Ramzan. Just like these hosts, our provincial governments give away notifications to keep us – the spectators – happy.

Recent focus has been on the Punjab government’s ‘well-intended’ working-class friendly notification issued on April 10, 2020. Although this notification has been withdrawn recently, but the discussion that follows is still relevant. It forbids forceful, illegal or without due process eviction of tenants by landlords for non-payment or late payment of rent. This notification was to remain in effect for two months, just like section 144(6) of the Code of Criminal Procedure under which it is issued envisages.

In the simplest terms the notification says no landlord can illegally evict a tenant because these are grave COVID-hit times. Did it close a loophole in the law and now all landlords must legally evict their tenants? So, if we never descended into these grave COVID-hit times a landlord was free to forcefully and illegally chuck out their tenant? No. Punjab has a good tenancy law regime called the Punjab Rented Premises Act 2009, and guess what it forbids: forceful, illegal or without due process eviction of tenants by landlords for non-payment or late payment of rent.

Did we need a notification to tell us what the Punjab Rented Premises Act 2009 already does? No one, even before these grave COVID-hit times, was allowed to throw out their tenant for non-payment of rent without ‘seeking eviction’ from the Rent Controller. A Rent Controller is a special court which was created by the Act especially to look into matters of eviction and other landlord-tenant disputes.

Many legal pundits have declared the notification illegal. They say that this notification means that for a period of two months no landlord can evict their tenant. According to them, this is illegal because the Act only allows a 30 days grace period to a tenant; and, since an executive notification cannot suspend or amend an act of the legislature (the Punjab Assembly) therefore, the notification is illegal. But, I say hold your horses, the notification is anything but illegal; Mr Additional Chief Secretary was merely repeating what the Act says. Surely you cannot penalise someone from restating the law. The notification changes nothing. It does not change the 30 days grace period to two months. Let us not hate the Punjab government for giving us a gift we already had, but go all out on wondering why it did issue this notification when it achieves nothing, and criticise it for being unnecessary and probably bearing an ulterior motive in so doing.

It is not just the Punjab. Here at least the notification was a mere restatement of law, but guess what the Sindh government did through a notification – it actually broke the law. On March 22, 2020, the Sindh government passed a notification enforcing a lockdown in the province. However, it also decided to direct all employers to not lay off their workers nor withhold their salaries. This was done through a notification passed by the Sindh government on March 23, 2020.

Importantly, this second notification, as the first notification, was passed under the Sindh Epidemic Diseases Act 2014 (EDA). This Act allows the Sindh government to take such measures as it shall deem necessary to prevent the outbreak and spread of diseases while also empowering it to determine the manner and by whom any expenses incurred by such measure will be borne. All this is subject to the satisfaction of the Sindh government that the ordinary provision of laws are insufficient for that purpose. So, relying on the power it has under the EDA, the Sindh government passed the second notification. However, the Sindh Terms of Employment (Standing Orders) Act 2015 (Standing Orders Act) contains an express provision making it legal for the employers to lay-off and withhold partial salaries of their employees in Standing Order 15. This Standing Order is the reason why the second notification runs into grave legal trouble.

The acts, both the EDA and the Standing Orders Act, are passed by the Sindh Assembly – the legislator. However, the second notification was passed by the Sindh government – the executive. The simple question that should have faced the Sindh Government was: can a notification (which is after all an executive action), even when passed under the discretion granted to it specifically by the legislator, trump the express will of the legislator contained in a different act? The answer, as all legally inclined people would know, is no. Under our constitutional arrangement, the legislature is supreme and the executive cannot negative or go against the will of the legislature.

Through the Standing Orders Act the employers are allowed, especially in the case of an epidemic (which clearly this virus is), to pay the workers fifty percent of their salaries or shut down their establishments. The legislature advertently included an epidemic outbreak, and excepted the employers from following the ordinary procedure of seeking the government’s prior approval for closing down the establishment in such occurrences. Surely, when legislature has laid down an intentional exception regulating the employers’ behaviour in epidemics, can the Sindh government exercise its discretionary power provided in the EDA against it? The Sindh government is precluded from varying the rights contained in Standing Order 15. The scheme that the EDA provides, which the provincial government has missed, is that the discretionary power delegated can only be exercised within the limits prescribed therein and only in eventualities which have not been the subject of the Sindh Assembly legislation. The government cannot, under the garb of this discretionary power go on reversing the laws passed by the assembly. If the right of the employers to lay-off and withhold had to be curtailed by the EDA, the legislature would have omitted epidemics exception for the employers from the Standing Orders Act. Realising this illegality, the Sindh government has now proposed an ordinance to be passed by the Governor of Sindh to rectify their illegal notification.

Rectification is not the issue. Nor was restatement of law through a notification an issue. The issue is that the provincial governments have no idea what to do and how to do it. Rather than performing better under pressure they have absolutely cracked. Since these notifications do not really do much or anything new for the people – one is illegal therefore of no legal effect, the other is irrelevant since that was always the law – the question is why were these notifications issued? Is it to make these governments look good? If that is it, then it has clearly backfired. Notifications in the time of COVID raise more questions than they answer. Are these notifications an example of incompetence of our governments or their declaration that they do not care about what the law says?