Flooding in Karachi: Solutions in Light of Eighteenth Amendment

The city of Karachi, which is not only the most populous city in Pakistan but is also the country’s economic hub, has been in the news for all the wrong reasons. During the monsoon season, the city has been battered by rains and floods. Harrowing footage has surfaced over electronic and social media regarding the catastrophe that has befallen the ‘city of lights’. The problems being faced by the city and its residents are well known and need not be repeated. Instead, this article will explore solutions, especially from a legal and constitutional point of view.

Ever since the Eighteenth Amendment to the Constitution of the Islamic Republic of Pakistan 1973 was passed more than a decade ago in April 2010, the power to do anything worthwhile in Karachi (or any city of Pakistan for that matter) vested in the provincial government. The federal government (or ‘the center’) became, for all intents and purposes, powerless. The Prime Minister of Pakistan recently visited Karachi and announced a “package” worth PKR 1.1 trillion (Tunio, 2020). He sat with the province’s Governor as well as the Chief Minister of Sindh in a bid to (it is assumed) show political unity on an issue of grave interest to the public at large. There was a press conference in which, needless to say, the federal and provincial government officials described what they intended to do. However, the problem is not with announcements, the problem is with their practical implementation, a fact that the people of Pakistan know all too well.

As already mentioned, the power to do something for Karachi lies with the provincial government of Sindh, which is being ‘ruled’ by the Pakistan People’s Party (PPP), a party that has been governing the province for 12 consecutive years now and has been in government, both at the federal and provincial levels, before as well. The PPP has become synonymous with corruption and incompetence and no one attaches any real hopes with them. Not too long ago, the PM had to order the Pakistan Army and the National Disaster Management Authority (NDMA) to go to Karachi and try to solve its issues (PM directs NDMA to handle Karachi after heavy rains, 2020). The situation was so dire that Siraj Kassam Teli, patron-in-chief of the Karachi Chamber of Commerce and Industry (KCCI) said, “In order to save Karachi, the city should be handed over to the Pakistan Army for a certain time period.” (Business community urges govt to save rain-hit Karachi, 2020).

The military and the NDMA have done some work but it is not a lasting solution. A long-term strategy needs to be devised and implemented and in the post-Eighteenth Amendment era, this has to be done by the provincial setup, which, it has become clear, is not competent enough to do anything. Hundreds of billions of rupees, courtesy of the National Finance Commission (NFC) Award, have been at the disposal of the PPP-led Sindh government for over a decade now and despite all of it the situation of Sindh is in front of everybody.

So what exactly should be done?

1 Trillion Rupee “Package”

The recent “package” announced by the PM is not the first of its kind. A similar (but much smaller) one had been announced about a year ago (Tahir, 2019). Considering that the PM’s government was unable to spend PKR 162 billion, it seems highly unlikely that they will be able to do anything with PKR 1,100 billion as well. The “package” announced by the PM should not be taken seriously.

Article 149 and the Authority it Lends to the Federal Government

Last year, the Federal Minister for Law and Justice, Dr. Farogh Naseem said that the federal government intended to invoke Article 149(4) of the Constitution in order to improve the situation in Karachi (Farogh Naseem hints at invoking Article 149 in Karachi, 2019).

Article 149(4) of the Constitution gives the federal government the authority to give directions to its provincial counterpart on how to run the affairs of the province in a way that may avoid any “grave menace” to the “economic life of Pakistan or any part thereof”. One option that the Pakistan Tehreek-i-Insaf (PTI) led federal government has is to argue that the situation in Karachi poses a “grave menace” to the “economic life” of Pakistan and use it as a pretext to invoke Article 149(4) of the Constitution. Being the economic hub of the country makes Karachi somewhat easy to link it with economy. There is also enough evidence to show that the situation there can be reasonably described as a “grave menace”. This may sound good, but there are many technicalities that need to be considered.

First of all, if the PTI goes down this route, it can be reasonably expected that it will be challenged in the superior judiciary. Will the federal government be able to defend its decision before the honourable judges? Only God knows. However, for the sake of discussion, let’s assume that the center does not face any legal challenge by invoking Article 149(4), what then? Sadly, it will most probably not achieve anything substantial. The words used in the Constitution are, “The executive authority of the Federation shall also extend to the giving of directions to a Province…” The words “giving of directions” can – and if challenged in the courts, in all likelihood, will – prove to be a headache for PTI. If interpreted literally, the federal government can only ask the provincial one to do something. To what extent can the former force the latter to do something is not clear. Either way, the federation cannot directly interfere in the affairs of Karachi with the help of this Article. Also, it should be noted that even if the federal government can somehow use some degree of coercive force, there is no [official] way to verify whether or not the orders of the federation have been implemented.

Governor’s Rule

Another option that is available to the center is to proclaim what is known as the ‘Governor’s Rule’. This seems to be a tempting option. The portion of the Constitution that deals with this particular subject is Article 234 according to which all that is needed is for the province’s Governor to send a report to the President stating that, “…the Government of the Province cannot be carried out in accordance with the Provisions of the Constitution…” After the President declares Governor’s Rule, the federal government assumes the powers of the provincial government and the Parliament assumes the powers of the Provincial Assembly, for a period of two months. The Parliament will also have the authority to extend the period of Governor’s Rule twice for a period of up to two months each, meaning that the federal government can ‘rule’ over Sindh for up to six months on the pretext of Governor’s Rule.

This is not all. Article 234 also grants the President the power to declare ‘President’s Rule’ on the same conditions as that of Governor’s Rule. In other words, once Governor’s Rule expires, President’s Rule can be declared. This way, the PTI-led government in the center can directly ‘rule’ over Sindh for a minimum period of four months (assuming there is no extension in either the Governor’s or President’s Rule) and a maximum period of one year (assuming that both Governor’s Rule and President’s Rule are extended to their maximum period). This method i.e. the Governor’s Rule followed by the President’s Rule, is not a new concept. It had been carried out by India in Indian Occupied Jammu and Kashmir (IoJ&K) not too long ago (India imposes president’s rule in IoK, 2018).

Challenges to Imposition of Governor’s Rule

While the concept of imposing Governor’s Rule and President’s Rule in Sindh does not seem to be an issue, the aftermath of doing so is fraught with challenges. The PPP will claim that the ‘rights’ of provinces are being usurped, there will be calls for protest and other parties belonging to the opposition will also join PPP against PTI. As a result, the country will witness a great deal of political unrest and uncertainty.

Other than the political angle, there is also the legal and constitutional angle to opposition against the imposition of Governor’s/President’s Rule, which is the most important aspect that should be looked into. If the federal government does, in fact, declare Governor’s Rule in Sindh, then, fortunately or unfortunately, it will be challenged in the courts. It is most likely that it will first be challenged in a High Court, followed by an appeal to the Supreme Court. Keeping this in mind, it would not be a bad idea to look at some of the arguments that each side will put forward.

The lawyers appearing on behalf of the PPP (or the opposition as a whole) will probably say that it is a conspiracy against provincial autonomy. They may say that the PTI-led federal government is on a witch-hunt against opposition politicians. They may use the example of PTI’s (now controversial) accountability drive as well as judgments of the apex court against the National Accountability Bureau (NAB) to try and make a case. The PPP in particular will use the ‘Sindh card’ and claim that ethnic Sindhis are being oppressed. Another argument that the opponents of the federal government’s move may use is that in order to proclaim Governor’s Rule, it is necessary to first declare a ‘state of emergency’.

The PTI will claim that the situation in Sindh in general, and in Karachi in particular, has deteriorated to a point that it has become necessary for them to interfere. They will also say that the Sindh government has been given ample time and opportunities to try and resolve the issues being faced by the province and that it has completely failed in this regard. They can claim that the center has, over the course of a decade, given billions of dollars to the province under the NFC Award, but this has not helped the people of the province. PTI can also use the report submitted to the Supreme Court by the joint investigation team probing the Fake Accounts Case to show that the money at the disposal of the Sindh government is not being used to serve the people and is instead being laundered, etc. In case the PPP says that it is necessary to declare an emergency before the proclamation of Governor’s Rule, PTI can always make up for it later and issue two new notifications: one with respect to proclaiming a state of emergency and the second with respect to imposing Governor’s Rule.

What will happen when the case reaches the High Court is not of any significance, as it is a foregone conclusion that regardless of the decision rendered, an appeal will be filed with the Supreme Court, the judgment of which will be final. This begs the question of what will happen in the Supreme Court. Based on the remarks that have been given by the incumbent Chief Justice of Pakistan (CJP), Justice Gulzar Ahmed (CJP Gulzar terms Sindh govt a ‘complete failure’, 2020), it can be reasonably assumed that the judgment will turn out to be in favour of the federation. The PPP may say that CJP Gulzar should not hear the case, citing a conflict of interest. Although the CJP will not be under any obligation to accept this argument, he may do it just for the sake of avoiding any ‘controversy’. The way the former CJP Saqib Nisar excused himself from hearing the Panama Case, CJP Gulzar may also opt to do the same. What will happen in such a scenario? Even if CJP Gulzar excuses himself, it is reasonable to predict that the judgment will turn out to be in favour of the federal government’s decision. This is because the images and videos that have been seen by all and sundry suggest that there is ample evidence of the PPP government in Sindh to have been proven to be a complete failure.

The PPP, which has made antagonizing remarks in the past (Sindh is not Islamabad’s colony: Murad Ali Shah, 2020), will also claim that the rights of Sindh have been usurped. Comparisons can – and most likely will – be made with what India is doing in IoJ&K. If this happens, then it will in all likelihood prove to be the greatest political challenge to the federal government’s move. Not only will the PPP, especially its Chair Bilawal Zardari, accuse the PTI of behaving like a colonizer, but the same narrative will be peddled even more viciously by the infamous Indian media, led by none other than Arnab Goswami and the like. The Indian Ministry of External Affairs (MEA) will also not remain far behind. While it is reasonable to predict that PM Imran Khan will be able to handle the Bilawal Zardari-led opposition political parties within Pakistan, will he be able to do the same when it comes to pressure from India? It is reasonable to assume that he will not. When the Afghan Taliban wanted to meet him, PM Khan declined saying that the Afghan ‘President’ Ashraf Ghani’s government was not in favour of such a meeting. If Imran Khan could not take even the slightest hint of pressure from who is more popularly known as the Mayor of Kabul, how can anyone possibly expect him stand firmly against India?

While the prospect of declaring Governor’s Rule may seem like a logical step, it is clear that the move will be met with resistance from not just within but from outside Pakistan as well. It seems highly likely that PM Khan will be unwilling (or unable) to face it.

Local Bodies

When it comes to the affairs of Karachi, the topic of ‘local bodies’ often comes under discussion. Article 140-A of the Constitution mandates the provinces to set up local bodies. While it is true that the Sindh Assembly approved legislation for the establishment of local governments in 2013 (Sindh Assembly passes Local Government Act 2013, 2013), it has been widely claimed that the Sindh Local Government Act 2013 has, for all intents and purposes, concentrated power in the hands of the provincial government while ensuring that the Mayor is just a ceremonial figure. The latest high-profile indictment against the Sindh government came from the outgoing Mayor of Karachi, Waseem Akhtar, who complained of lack of funds from the provincial government (Mayor Karachi Akhtar launches into outburst in farewell press conference, 2020).

Keeping all this in mind, with the current local government system in place, the chances of any improvement coming to Karachi in the form of self-governance appear to be next to none.

Amending the Constitution

The state of affairs in Sindh can justifiably be attributed to the lethal combination of the incompetence of PPP coupled with the authority that it enjoys thanks to the Eighteenth Amendment. In the recent past, there have been calls to “review” or “improve” the Eighteenth Amendment (Virk, 2020). In order to do this, a Constitutional Amendment is required which, according to Article 239 of the Constitution, can only take place if each House of Parliament approves it with at least a two-third majority.

The PPP is allergic to any mention of even touching the Eighteenth Amendment (Govt eyes changes in 18th Amendment, NFC Award: report, 2020). Given how political temperature can be raised on the issue of the Eighteenth Amendment, it seems unlikely that any such move will be made in the near-future. While the PTI-led federal government may talk about changes in the Constitution, it will most probably not take any practical steps towards it anytime soon.

Keeping in mind everything discussed above, one asks whether there is any reason to feel any sense of optimism with respect to Karachi? Is there any hope? There just might be.

Bahria Town Case

As already discussed above, the main issue being faced by the local bodies in Sindh is the lack of funds. What is also not unheard of is that when local bodies in Karachi were empowered during the Musharraf dictatorship, the city was much better off. Based on this, one gets the impression that if the Karachi city government is given an ample amount of money and resources, there is a chance that the condition of the mega-city can be improved. This begs the question of where the money will come from.

In March 2019, the Supreme Court accepted an offer amounting to PKR 460 billion by Bahria Town (Bhatti, 2019). The amount was to be collected in different installments over a period of 7 years. According to the formula given by the apex court, it is estimated that roughly PKR 70 billion may have been deposited with the court by now.

If the opposition parties in Sindh play their cards right, they may be able to seize this historic opportunity to empower local government in Karachi. Opposition politicians from Karachi should file a petition with the Supreme Court that the money collected from Bahria Town be transferred directly from the court to the elected Karachi City Administration. This is the best option because it will completely neutralize the PPP’s argument with respect to the Eighteenth Amendment and provincial autonomy.

As already mentioned, Article 140-A of the Constitution stipulates that local governments fall under the provinces, not the federation. If local bodies are given the money then PPP cannot claim that the federal government is encroaching on the domain of the provinces. Furthermore, if the money is released by the Supreme Court, then the PPP also cannot make the argument that the federal government has done something that it does not have the authority to do. Add to this the fact that Bahria Town is located in Karachi. What this basically means is that the money which has been collected from Karachi, will be given to the government of Karachi, to be spent on Karachi.

Based on the above, the best way to save Karachi from further destruction seems to be to ask the Supreme Court to transfer the money collected from Bahria Town to the local government of Karachi.

Opposition’s Strategy in Sindh

At the expense of repetition, it could be argued by the government that the Eighteenth Amendment is posing to be a very big – if not the biggest – obstacle to any improvement in the city of Karachi. To address this, it would be wise if the PM, as well others at the federal level who are opposed to the PPP-led Sindh government, not become a direct party to any attempt to acquire funds from the Supreme Court.

The local government in Karachi completed its term on 30th August, 2020 (ECP announces new delimitation schedule after local governments dissolved in Sindh, 2020). Members of the Provincial Assembly (MPAs) from Sindh, as well as local politicians from Karachi, should become petitioners and file a plea with the Supreme Court that the money collected from Bahria Town be given to the upcoming elected local government in Karachi. The reason that MPAs and local politicians, and not the PM or any other federal officials – including Members of the National Assembly (MNAs) and Senators from Karachi – should file the plea is that it will further negate the PPP’s argument that there is some ‘conspiracy’ against provincial autonomy. If people from Sindh file a case, and if their plea is to give funds to the authorities that constitutionally fall under the provinces (i.e. local bodies), then fingers will not be pointed at the center.

Conclusion

Based on everything that has been discussed above, one can reach the conclusion that the best way to improve the situation in Karachi is to have the money deposited by Bahria Town with the Supreme Court transferred to the elected local government in Karachi.


References

  • Bhatti, H. (2019, March 21). SC accepts Bahria Town Karachi’s Rs460bn offer, halts NAB references. DAWN.
  • Business community urges govt to save rain-hit Karachi. (2020, August 27). Profit.
  • CJP Gulzar terms Sindh govt a ‘complete failure’. (2020, August 12). Pakistan Today.
  • ECP announces new delimitation schedule after local governments dissolved in Sindh. (2020, September 1). The News.
  • Farogh Naseem hints at invoking Article 149 in Karachi. (2019, September 12). SAMAA.
  • Govt eyes changes in 18th Amendment, NFC Award: report. (2020, April 26). Pakistan Today.
  • India imposes president’s rule in IoK. (2018, December 20). The Nation.
  • Mayor Karachi Akhtar launches into outburst in farewell press conference. (2020, August 24). Geo.
  • PM directs NDMA to handle Karachi after heavy rains. (2020, July 30). The Nation.
  • Sindh Assembly passes Local Government Act 2013. (2013, August 19). DAWN.
  • Sindh is not Islamabad’s colony: Murad Ali Shah. (2020, June 11). The News.
  • Tahir, M. B. (2019, March 31). Rs 162 billion package for Karachi announced. Businees Recorder.
  • Tunio, H. (2020, September 5). PM Imran announces Rs1.1 trillion package for Karachi. The Express Tribune.
  • Virk, S. (2020, May 21). Review of 18th Amendment necessary: Farogh Naseem. The Express Tribune.

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.

Muhammad Ahmad Saleem

Author: Muhammad Ahmad Saleem

The writer is a BA.LLB (Hons) student at the School of Law and Policy, University of Management and Technology.

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