KARACHI: The Sindh High Court was informed that a provincial legislation pertaining to promotion of breastfeeding, adopted by the then Sindh Assembly in July, was enacted and notified by the government in the official gazette in September despite the fact that the governor returned it without giving his assent.
Five firms, including Lahore-based Nestle Pakistan and The Searle, moved the SHC against the Sindh Protection and Promotion of Breastfeeding and Young Child Nutrition Act, 2023.
The matter was heard by a division bench headed by acting Chief Justice Aqeel Ahmed Abbasi.
The petitioners cited the Sindh chief secretary, secretary of the ministry of law & justice, secretary of the Council of Common Interest, joint secretary of the ministry of inter-provincial coordination and principal secretary to the Sindh governor as respondents.
Five infant formula firms challenge Sindh Protection and Promotion of Breastfeeding and Young Child Nutrition Act 2023
Representing the petitioners, Advocate Arshad Tayebaly submitted that his clients, the five firms, were manufactures, importers and suppliers of infant formula.
He submitted that the impugned legislation was purportedly notified in the official gazette on Sept 20 with some specific provisions which aimed to further restrict access to products that contributed to the nutrition of infants.
He argued before the bench that the impugned legislation was passed by the provincial assembly in its sitting held on July 13 and the law had been enacted in violation of Article 116(2) of the Constitution.
He contended that the bill of the impugned legislation had been sent back by the Sindh governor without his assent on Aug 7 with reservations to be addressed by the provincial assembly and thus it was required to be reconsidered by the assembly and then re-submitted for the assent of the governor.
The counsel stated that the term of the provincial assembly was valid till Aug 11, but the bill was neither placed before the house again nor was it deliberated upon prior to the lapse of the term.
He submitted that the bill was sent to the governor secretariat on July 21 by the chief minister secretariat, but the governor returned it to the CM secretariat on Aug 11 with a message in accordance with Article 116(2) of the Constitution.
The lawyer submitted that Section 4 pertained to registration of firms dealing in sale and manufacturing of infant formulas in their respective provinces, thus the matter should have been referred to the Inter-Provincial Coordination Committee which had not been done in the instant case as per Rule 19 of the Rules of Business, 1973.
He stated that besides Article 18, some provisions of the impugned legislation including Sections 11, 12 and 13 were also in violation and contrary to the Protection and Promotion of Breastfeeding and Young Child Nutrition Ordinance, 2002 as well as the Sindh Protection and Promotion of Breastfeeding and Young Child Nutrition Act, 2013 wherein no such provisions of restrictions had been provided.
The petitioners contended that the chief secretary had created a narrative that the bill of the impugned legislation was not returned by the governor within the stipulated time frame which would allegedly ipso facto mean that it was deemed to have been passed.
The impugned legislation, which was notified on Sept 20, also begged the question as to how the speaker of the assembly notified the same when the provincial assembly stood dissolved on Aug 11.
“Let pre-admission notice be issued to the respondents as well as Advocate General Sindh and Deputy Attorney General in term of Order XXVII-A, CPC, to be served through first three modes for 07.12.2023,” the bench stated in its order.
Published in Dawn, November 19th, 2023