Protecting the Right to Adequate Housing
The Supreme Court of Pakistan has recently restrained the Government authorities from demolishing and bulldozing the houses of poor slum dwellers of Islamabad. The order was passed when the Government started operation against slums (katchi abadis) with a plan to remove 41 katchi abadis in Islamabad. The operation was started on the orders of a single bench of Islamabad High Court who ordered the authorities to remove such abadis without affording the petitioners (slum dwellers) a fair opportunity of hearing; in which they had prayed for the protection of their right to adequate housing.
The right to adequate housing is a universal right, recognized at the international level and affirmed by the United Nations and recognized in Regional Treaties and in more than one hundred national constitutions throughout the world. It is a right recognized as valid for every individual person forcing governments to respect their legal obligation to guarantee a life of dignity. The human right to adequate housing, which is thus derived from the right to an adequate standard of living, is of central importance for the enjoyment of all economic, social and cultural rights. According to Annual reports of the United Nations Special Rapporteur on the Right to Adequate Housing to the Commission on Human Rights (2001 to 2005) and for the United Nations Special Rapporteur on the Right to Adequate Housing, Miloon Kothari, “the human right to adequate housing is the right of every woman, man, youth and child to gain and sustain a secure home and community in which to live in peace and dignity.” The Special Rapporteur emphasizes that the realization of the right to adequate housing is intimately linked to the realization of other basic human rights, such as the right to life, the right to protection of one’s private life, of one’s family and one’s home, the right to not be subjected to inhuman or degrading treatment, the right to land, the right to food, the right to water and the right to health. He has also insisted that its realization is tied to respect of the fundamental principles of non-discrimination and gender equality.
The following are the International Declarations and human rights treaties which established the right to adequate housing as a fundamental human right;
- the Universal Declaration of Human Rights 1948,
- the International Covenant on Economic, Social and Cultural Rights (1966),
- the International Covenant on Civil and Political Rights (1966),
- the International Convention on the Elimination of All forms of Racial Discrimination (1965),
- Convention on the Elimination of all Forms of Discrimination against Women (1979),
- Convention on the Rights of the Child (2009), the Refugee Convention, 1951,
- International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families 2005,
- the Vancouver Declaration On Human Settlements, 1976.
Although the Federation of Pakistan being the State party of the International treaties was bound to protect the fundamental rights of the slum dwellers but unfortunately, she failed to do so. Despite the fact that the State cannot forcibly evict the Slum Dwellers and their families without providing them adequate housing and the others facilities provided and guaranteed in Article 9 of the Constitution of Islamic Republic of Pakistan,1973, the Capital Development Authority along with the Police has evicted hundreds of people forcibly.
People, who were brought by the Government to construct Islamabad, started to dwell in slums from early 1960s as they were not provided the basic facilities of life. However, after the directions of the Cabinet Division in 1997, CDA started rehabilitation of slums and decided to recognize slum areas and therefore, malafidely, out of about 51, recognized only ten katchi abadis (slums) in Islamabad and excluded the others from the list of bonafide dwellers. In this situation, CDA has worked on pick and choose basis to ease the process on their part which was an act of a sheer and glaring discrimination.
Since 1980, Capital Development Authority (CDA) has been providing plots to the dwellers of other katchi abadis before removing them from their homes. In 1990, CDA allotted 190 plots (20’ x 30’) to the Christian Multipurpose Co-operative Society, around the existing katchi abadi in F 6/2 for the construction of low-cost houses for the katchi abadi dwellers. In 1991-92 almost 1208 dwellers of F-9 katchi abadi were settled at Ali Pur Farash but the others were ignored.
The project of Alipur Farash was initiated by the CDA with the idea to relocate the katchi abadis within the Capital. The first relocation of around 122 households was carried out in 1991-92 from the abadi located at F-9 Park and later in 2004 as the government approved of allotments of plots. The scheme of “Model Urban Shelter Project” (MUSP) Farash has been planned in three pockets which are spread over an area of 165 acres consisting of 4,000 plots, measuring 3 Marla each. In MUSP, CDA had a total of 4,000 plots which had to be allocated for the dwellers of katchi abadis being shifted to Alipur Farash, plots were given away to the families evacuated from F-9 park area,1,250 were given to the families who were residing in four katchi abadis, while 1550 plots are still lying vacant.
On the other hand, CDA has adopted several measures for encroachment and demolishing the houses of poor dwellers of remaining katchi abadis, a comprehensive campaign has been launched to remove the houses of these poor dwellers but nothing satisfactory has been done to ensure the protection of their human rights and to provide them adequate housing. The project named “Model Urban Shelter Project” (MUSP) was initiated, although the relocation was also carried out but settlement still lacks many basic facilities restricting people to come and start their living at the location. An overview of the said schemed is provided below;
i. The process adopted by CDA is so complex that no “Property Rights” have yet been awarded in any katchi abadi.
ii. Lack of development work (roads, Sewerage etc) has caused failure of projects.
iii. Sui Gas, electricity, water supply etc. are yet awaited.
iv. The model project of onsite up gradation of katchi abadi G/8-1 is also facing chronic delays. After 9 years only 400 households are settled out of total 575, but even they are awaiting roads, paved streets, water connection etc.
v. The abadi of F/6-2 having 300 Households (which had to be developed by Christian Multiple Cooperative Society) is also facing a halt [Shelter for the poor; Legislation and Enforcement; a case study of Islamabad published by Akhtar Hameed khan Resource Centre].
Under the directions given in National Housing Policy, the majority of existing katchi abadis were supposed to be regularized and upgraded, with the dwellers being granted ownership rights of the land which they were occupying and CDA developing services like electricity, gas and water. However, not a single dweller of katchi abadis has been able to obtain housing rights and the pace of development in the existing katchi abadis is also compromised. There is clear and established evidence that CDA has been badly failed to make appropriate measure to protect the right of housing of dwellers of katchi abadis and that the pace of development and implementation of policy decisions is exceedingly sluggish and unsatisfactory and because of the failure of the responsible segment of the State i.e. CDA, the slum dwellers have become an unrecognized community. They have to face the issuance of CNIC, are remained unable to enjoy their constitutionally protected fundamental rights. They are deprived of even basic urban facilities which offends the fundamental rights enshrined in the Constitution and violates Articles 2-A, 3, 4, 9, 11, 14, 18 and 25 of the Constitution of Islamic Republic of Pakistan (1973).
When Viewed from all angles, it is abundantly clear that right to adequate housing is a fundamental right covered by Article 9, 14 and 18 read with Article 38 of the Constitution and, therefore, any unreasonable restraint, hindrance or condition on its exercise will be ultra vires the Constitution, irrespective of whether the same was imposed by an administrative or executive act, by some statutory rule or even the statute itself. In the present case, the attempt to forcibly eviction amounts to violation of the Constitution [Imdad Hussain vs The province of Sindh – case reported as PLD 2007 KARACHI 116].
The eviction move is legally questionable as a National Housing Policy passed in 2001 applied to land in Islamabad, ensured the “process of regularization and up-gradation of the pre-1985 katchi abadis” and shall “continue as per current policy”, and that there “shall be no eviction till katchi abadi residents are relocated as per resettlement plans”. The relevant paras of National Housing Policy, 2001 are reproduced here.
“5. KACHI ABADIS, SQUATTER SETTLEMENTS & SLUMS
Regulation and Controls
a) The process of regularization and up-gradation of the pre-1985 katchi abadis shall continue as per current policy. However, katchi abadis, which are hazardous by virtue of being close to railways tracks or located under high tension power lines, or are on or close to the riverbeds, or on lands needed for operational /security purposes, need to be relocated at appropriate places by LOAs.
c) There shall be no eviction till katchi abadis residents are relocated as per resettlement plans.
The right to human dignity has achieved the status of international customary law and therefore is legally binding for all States regardless of their abstinence to adhere to human rights treaties granting the right to housing.
The forced eviction is gross violation of human rights i.e. the right to adequate housing and is also prima facie incompatible with the requirements of international treaties and declarations which have been ratified by the Federation of Pakistan and also inconsistent with the norms of international practices. The international community has taken it very seriously. In 1976, the United Nations Conference on Human Settlements noted that special attention should be paid to “undertaking major clearance operations should take place only when conservation and rehabilitation are not feasible and relocation measures are made”. In the Habitat Agenda Governments committed themselves to “protecting all people from, and providing legal protection and redress for, forced evictions that are contrary to the law, taking human rights into consideration; and when evictions are unavoidable, ensuring, as appropriate, that alternative suitable solutions are provided”.
To ensure compliance and extend commitment, the government of Pakistan declared in Article 38 of the Constitution of Islamic Republic of Pakistan, 1973 that;
“ 38. Promotion of social and economic well-being of the people.—
The State shall—
(a) secure the well-being of the people, irrespective of sex, caste, creed or race, by raising their standard of living, by preventing the concentration of wealth and means of production and distribution in the hands of a few to the detriment of general interest and by ensuring equitable adjustment of rights between employers and employees, and landlords and tenants;
(b) Provide for all citizens, within the available resources of the country, facilities for work and adequate livelihood with reasonable rest and leisure;
(d) provide basic necessities of life, such as food, clothing, housing, education and medical relief, for all such citizens, irrespective of sex, caste, creed or race, as are permanently or temporarily unable to earn their livelihood on account of infirmity, sickness or unemployment.
The views expressed in this article are those of the author and do not necessarily represent the views of any organization with which he might be associated.