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October 19, 2020

The Bundal-Buddo controversy: Part - II

Opinion

October 19, 2020

In the first part of this column we discussed the Bundal-Buddo controversy with its development and environmental implications. Here we take a look at what is wrong with Ordinance No XI of 2020 that President Arif Alvi promulgated on August 31 and the Gazette of Pakistan published on September 2, 2020.

Ordinance No XI of 2020 shows that it is the eleventh ordinance promulgated in the first eight months of the current year. That makes it nearly 1.5 ordinance a month or a new ordinance every 20 days. The frequency and regularity with which these ordinances are being imposed on the people of Pakistan should be a cause of concern. It is neither in the interest of democracy nor in accordance with respectable constitutional practices. Though the ordinances themselves are not unconstitutional, their manner of issuance is beyond appreciation and comprehension.

The ordinance begins: “Whereas it is expedient to establish an Authority for the development and management of the islands in the internal waters and territorial waters of Pakistan.” According to most dictionaries, the word ‘expedient’ itself has a negative connotation for something helpful or useful but not necessarily or morally acceptable. According to Cambridge Dictionary if something is ‘expedient’ it may be useful without considering any moral questions that might influence your decisions. It also implies that perhaps it is not the right thing to do morally or for the future.

Since the state has used this language for decades, we will not take issue with it, but the next line is even more unpalatable. It says, “whereas the Senate and the National Assembly are not in session and the president…is satisfied that circumstances exist which render it necessary to take immediate action.” Here a couple of points arise. First, the Senate and the National Assembly are the voice of the people and their sessions are gatherings of the people’s representatives. They are the primary legislative bodies that address the concerns of the people by acting on people’s desires.

They debate and enact just laws by incorporating inputs from various segments of society, including political parties and civil society. When the Senate and the National Assembly are not in session it is advisable to call a session to discuss any immediate challenges. Though constitutionally the president can exercise his powers ‘if circumstances exist’, one may ask what those circumstances were in which the session could not be called but the ordinance had to be promulgated. What ‘rendered it necessary to take immediate action’? Had the ordinance been delayed till the session’s start, what adverse impact could it have on Pakistan and its people?

In chapter one, the ordinance extends itself “to the whole of Pakistan” meaning it is not Bundal-Buddo specific but will cover all islands on the coasts from Balochistan to Sindh, the only two maritime provinces of Pakistan. For such major legislation that concerns the two provinces, ideally extensive consultations should have taken place before the promulgation of the ordinance.

In chapter one, 2 (c), the buildings under the purview of the Authority are defined as: “any factory, industrial or business establishment, shops, go-down, warehouse, house, outhouse, hut, hutment, shed, garage, stable, well or platform, and any other structure, whether meant for residential or business purposes or not, not being for agricultural purposes or use, made of masonry, bricks, wood, mud, thatch, metal or any other material.”

You see how all-encompassing the passage is? Meaning that even huts, sheds, and stables that any fisherman or local resident has made using mud or thatch also come under the purview of the Authority. Did they talk to any fishermen or local denizens before outlining the above?

Then under 2 (r) the scheme is defined as comprising development or redevelopment of inter alia “infrastructure and services including transportation systems and road networks, traffic management systems, healthcare facilities, educational facilities, recreational and cultural facilities, municipal and civic facilities and services, communications systems and facilities, utilities infrastructure and network including water supply, drainage, sewerage, sanitation, or…” The list is long and again all-encompassing, giving the Authority an almost unparalleled range and scope that perhaps even DHA does not enjoy, though the DHA’s performance itself came under severe criticism during the recent rains in Karachi.

Chapter two of the ordinance under 4 (3) it says, “The head office of the Authority shall be at Karachi and the authority may establish regional and such other offices in such other parts of Pakistan as it may deem necessary.” Other offices in Balochistan and Sindh may make sense but ‘other parts of Pakistan as it may deem necessary’, is questionable. Under 5 (a) it empowers the Authority to “initiate and maintain a continuous process of reclamation, master planning, and spatial planning for the specified areas.” Please pay special attention to the ‘continuous process of reclamation’.

The reclamation that the government and its other ‘authorities’ have already done has caused tremendous harm to the beach and to the ecology of the coastal areas. We know that reclamation is irreversible – meaning, the land cannot be returned to a natural state and that part of the sea is lost forever. It also harms sea life and the aftermath includes effects of the dredging process and disposal process. The reclamation site and dredging site both undergo biological, chemical, and physical impacts. But the ordinance does not talk about them, though otherwise it goes into minute details of defining a building.

Under 5 (f) it says “promote and stimulate the specified area as trade, investment, and logistics centres…with the directions of the Patron.” The patron is the prime minister and there is no mention of any directions from the provincial chief minister or the Karachi city government, or the provincial assembly. One wonders how the PTI MNAs and MPAs elected from Sindh could praise the ordinance and not question its blatant encroachment on the provincial and city government’s rights. Remember, the president himself is from Karachi. Then there are other problems with the ordinance such as that regarding procurement of property.

The ordinance says under 5 (g) that the Authority shall “recommend to the government to provide or procure immoveable property…including compulsory acquisition, purchase, lease, or license through private agreement; donation by any private property or any state land or project by any government or other public authority…” This is absolutely mind boggling. How can an authority have so much power and the provincial and city governments have no role in it? The ordinance gives the authority arbitrary powers to impose its decisions without any advice or even consultations from the provincial and city governments.

But perhaps the most devastating point is in Chapter three under 14 titled ‘Indemnity’. “No suit, prosecution or other legal proceedings shall lie against the Patron, Authority, the chairman, any member, officer, servant, expert or consultant of the Authority in respect of anything done or intended to be done, in good faith and in line with the provision of this ordinance.” This is a death nail to accountability, democracy and good governance. You persecute and prosecute previous ministers and even prime ministers for almost everything they have done, and here you give blanket protection to all major and minor officers and servants and even consultants.

This is a 25-page ordinance and one can write a book on it but here limited space does not allow us to go on. So then, what should the federal government do? It should immediately withdraw the Ordinance. It should stop using ordinances as a means of legislation. It should try to improve existing cities, provide facilities to coastal people, protect biodiversity, and most of all stop catering to the elites and start focusing on common people.

Concluded

The writer holds a PhD from the University of Birmingham, UK and works in Islamabad.

Email: [email protected]