It has hardly been a month that the twin cities were graced with the inauguration of the metro bus service to facilitate the commuters travelling between Islamabad and Rawalpindi. The effort and the investment put into the project were magnanimous. However, the recent spell of monsoon rains showed us the leaks, literally, not only in the infrastructure erected for metro but also in the foresight of our leaders who envision such projects at the cost of more important works that need to be done before building mega structures. The ‘leaks’ could have been digested had the government also made, permanent and not ad hoc, arrangements to protect the people in the low laying areas of Rawalpindi from the devastation caused by flooding in Nala Lai by ensuring that a proper drainage system had been installed for the entire city. According to a news report, 8 people lost their lives while many had to be moved to safer places. The question is; does the Constitution of Pakistan provide people with the right to a dignified and quality life while placing corresponding obligations on the state i.e. the incumbent, to ensure the same or is the government free to make the decisions without setting any priorities? The answer is; yes! The Constitution does guide the government with respect to the tasks that should be given priority in the budgetary allocation or policy making.
Before delving into the legal argumentation, it is important to clarify a few things at the very outset before I become a prey of politics. The article would seek to establish the legal basis upon which the jurisdiction of the court can be invoked to prevent the government from undertaking projects which tend to override the more imperative issues that need to be addressed. Secondly, the author is mindful that the principles of policy provided for in the Constitution cannot be invoked in the court as a matter of right and their satisfaction is left at the discretion of the government. Nevertheless, the same principles can be invoked before the honorable Courts in a bid to seek a balance being struck between government’s priorities and the common man’s right to a healthy and dignified life.
Article 9 of the Constitution provides; No person shall be deprived of life or liberty save in accordance with law. The Article, prima facie, does not suggest a right to quality and healthy life but the Supreme Court of Pakistan in the seminal Shehla Zia case interpreted the term ‘life’, broadly. It noted that ‘the word “life” has not been defined in the Constitution but it does not mean nor can be restricted only to the vegetative or animal life or mere existence from conception to death. Life includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally.’ Thus, the government is responsible for creating an enabling environment to safeguard the minimum standards of living. This means that the right is not merely restricted to provision of health services but includes right to adequate housing, clean environment and proper sanitation.
It is pertinent to note that, though, the right to adequate housing, owing to budgetary constraints, cannot be extended to every individual immediately but clean environment and proper system of sanitation can and must be made available in every part of the country. If a staggering amount of 44.84 billion rupees can be spent on a track then why has the government failed to realize the importance and, more importantly, need of affecting a system that would prevent flooding?? Not only has the flooding taken precious lives but has left many helpless and adversely affected the environment.
Principles of policy, on the other hand, require careful consideration as they cannot be invoked as matter of right since Article 29(2) clearly states that the observance of a particular principle is subject to availability of resources. But at the same time clause 1 of the same Article places the executive under an obligation ‘to act in accordance with those Principles in so far as they relate to the functions of the organ or authority’. Thus, if the resources are available, the government needs to actively pursue the principles provided therein and though, according to Article 30 (2), ‘validity of an action or of a law shall not be called in question on the ground that it is not in accordance with the Principles of Policy’, jurisprudence of the Court does support the assertion that where the policy is ‘shown to be mala fide or in violation of the fundamental rights guaranteed under the Constitution to every citizen of the country, thereby affecting the interest of public at large’ Court may interfere by invoking its jurisdiction under Article 184(3). In a very recent case, Sindh High Court noted that ‘Constitutional provisions were to be read harmoniously with one another’ and, therefore, the provisions of fundamental rights can be read with principles of policy. The policy directives given in Articles 37 and 38 requiring executive to actively promote social justice, social and economic wellbeing of the people and eradicate social evils should, therefore, be given preference.
The idea is not to discourage the government from undertaking mega projects for there is a need to improve the transportation system or to seek a plethora of petitions against the incumbent but to invoke a sense of realism amongst the executive. It is important that they strike a balance between their wishes and the needs of the society. Pakistan has not reached a stage where it can afford to let go off needs-based approach.
Also, remaining mindful of the fact that the budget allocation has nothing to do with the court nor can it dictate the executive but it is the responsibility of the Court to act as guardian of rights. If people have lost lives due to poor planning and short-sightedness of the government, it is high time that the Court should play a more active role in determining whether the allocations are just and correspond to the primary obligations of the government to protect fundamental rights and give due consideration to principles of policy. One must not forget that Islamabad and Rawalpindi are major cities of Pakistan and reflect the desired model that government seeks to adopt for other cities. If the government continues with its tendency to overlook every other aspect and detail of managing resources and making right decisions, we may soon be left with bridges and metros but not enough people to use the facilities.
Previously published in The Nation.
