FACING the Covid-19 pandemic, the federation and the province of Sindh have recently taken two major decisions based on their desire to provide the public with moral leadership, and both have tremendous consequences.
In a nation as ours, where religiosity plays such a central role in private and public lives, it is always easier for governments to look morally upright than to do what is fair and just.
Morality makes for personal codes, laws govern public obligations.
When morality forms the basis of the executive’s exercise of power, the extent of right or wrong prescribed or prohibited is beholden to the decision maker’s personal interpretation. From the rule of certain law, we shift towards the rule of men and their arbitrary notions of good and evil. As Oscar Wilde put it, morality, like art, means drawing a line someplace.
The federation allowed for mosques to reopen for the general public for the month of Ramazan. This paper noted that one of the reasons why the clerics were insistent on this to happen was due to the major shift of donations, including zakat, from religious institutions towards philanthropy. Losses which would be compounded if houses of worship remained closed in the month of giving. Relief packages for mosque muezzins and khatibs were also announced. Until this relaxation, we were told by our PM that the balance that needed to be struck in deciding our Covid-19 response was between hunger and disease.
The state chose to reverse the gains made by every restrictive measure taken thus far in the face of a clergy which was adamant upon the revival of its territory, whatever science had evidenced. Where this sits on the balance between disease and hunger was left unanswered. At best, it was a decision excusing itself as one allowing for the exercise of moral compulsions rather than the one rooted in sound principles of public policy.
The province of Sindh has attempted a moral intervention of a more humanitarian nature. Through an executive order, it declared that all employers are to pay and retain all employees for the period of the shutdown, for which period it had similarly mandated these employers to cease doing business. Where on the one hand the province had declared it illegal to put people to gainful employment, it is on the other hand asking employers to still pay the employees it had itself stopped from working. This may be an ideal moral position, asking generally richer employers to pay for generally poorer employees, but perhaps not one that can survive the test of legality.
Executive actions are tested on three touchstones: proportionality, rationality and subsidiarity. Whenever executive power is exercised, it must be exhibited to be a proportionate response to the challenge faced; it must be a rational and reasoned counter to the problem being addressed; and action must be taken at the lowest level of the government hierarchy as is possible.
Proportionality prevents a state from taking cannon-sized action to kill mice-sized problems. Rationality prevents nonsensical exercises of discretion and subsidiarity ensures the federal ministry of housing does not decide upon how high you can build your house when your local government can decide this with more information and efficiency.
Sindh’s executive intervention banning redundancies and stoppage of wages was intended to care for those left most vulnerable by its decision of lockdown. But trade and employment laws in effect within the province allow for both. Where a stoppage of work operations occurs due to external causes such as calamities or epidemics, the Sindh Terms of Employment (Standing Orders) Act 2015 allows for the immediate reduction to half pay for the next 14 days for employees, whereafter terminations can take effect as per the contract of employment. The Sindh Payment of Wages Act 2015 allows for deductions from wages on the basis of absence from work.
The Sindh Epidemic Diseases Act 2015 under which the executive intervention has occurred allows only for the placement of restrictions where necessary and for the payment of expenses that are incurred in establishing those restrictions. No mechanism exists for ordering employees upon an unwilling and at times even unable employer.
But even if we suppose the executive order to retain and pay all employees is not inconsistent with already existing law, can it be called a proportional response to the challenge faced? Is it rational to impose a measure which burdens a labour-intensive industrial unit with the liability of hundreds of salaries whilst capital-intensive companies with fewer employees get away with comparatively paying much less even if their profits are much higher? Is this a decision best taken at the level of the provincial government?
In the face of emergencies, governments adjust spending priorities and raise more revenue through extra taxation. If the government of Sindh wished to support those rendered unemployed by the necessary lockdown, an increase in the rate of taxation in areas within their jurisdiction to support an unemployment support programme would be the rational step, if not the only legal one. If the only means to raise such an amount by way of tax is through taxing large corporate incomes, then the province could have approached the federation to impose an emergency additional income tax of such a variety, just as the super tax on large incomes was imposed as a means of financing the care of internally displaced persons caused by the war on terror.
Meanwhile, the federation’s challenge was to allow for the public to practise their faith as much as the prevention of hunger and disease would allow, whilst also catering to the demands of the clergy. Countries from where we usually draw our mainstream religious direction such as Saudi Arabia have banned prayer congregations in the month of Ramazan, and encouraged their citizens to pray at home. The two holiest Islamic sites in the world, the holy mosques of Makkah and Madina, were both shut for the general public in the holy month. A global religious precedent clearly exists for the practising of the Islamic faith to continue without physical congregation, as the threat of disease spreading is too great.
The federation hence needed only to address the desire of the clergy to retain their ability to address willing worshippers, and to allow for the collection of alms. Was this proportionately and rationally addressed by the decision to open all mosques? Was the lowest possible level to make a decision about all mosques in all areas of the entire country the federal cabinet and the president?
The Sindh government will have to answer for attempting to help the vulnerable imperfectly; and the federation, for choosing to look pro-piety when the circumstances demanded harder decisions in the name of good policy.
Published in Dawn, May 3rd, 2020