It seems that the Federal Law Minister Farogh Naeem has announced that the federal government is considering taking over the administration of Karachi by invoking Article 149 (4) of the Constitution. This announcement has rightfully resulted in a firestorm in Sindh. This decision can be viewed from both constitutional and legal perspectives. Let us start with the constitutional part first.
Before talking about Article 149 (4), I want to briefly talk about constitutional design. One of the key challenges faced by any constitutional writer is to find a balance between competing ideas of flexibility and rigidity. A constitutional article should not be so narrow that it does not allow dealing with an unforeseen situation. But it should be rigid enough to clearly define the lines of authority so that there is no ambiguity and vagueness, which can otherwise result in infighting and lead to a constitutional crisis.
I have read the 1973 Constitution a 100 times. Every time I have read it, my impression is reaffirmed that it is a badly written document and is one of the main reasons why our society has remained unstable. This faulty foundation stone will keep us from making real progress towards a better future.
Now let us consider Article 149 (4). Here is the exact wording of this article:
“The executive authority of the Federation shall also extend to the giving of directions to a Province as to the manner in which the executive authority thereof is to be exercised for the purpose of preventing any grave menace to the peace or tranquility or economic life of Pakistan or any part thereof.”
This article does not have any authority without Article 149 (1) which states:
“The executive authority of every Province shall be so exercised as not to impede or prejudice the exercise of the executive authority of the Federation, and the executive authority of the Federation shall extend to the giving of such directions to a Province as may appear to the Federal Government to be necessary for that purpose.”
Article 149 (1) talks about the supremacy of the federal authority over the authority of a province. Like the rest of the Constitution, this article is very vague and circular. It demands that the provinces have to ensure on their own that they are not impeding the authority of the central government. Then it instructs the provincial government to adhere to the direction of the federal government to ensure such compliance. But what is the nature of this direction? What happens if the province ignores this direction? Who decides that there has been prejudice or the impeding of federal authority by a province? These important questions are unanswered and add to the ambiguity.
In the absence of Article of 149 (1), Article 149 (4) cannot grant any authority to the central government over the provincial government. But the way the Constitution is written implies that article 149 (4) can be applied without any recourse to Article 149 (1). Though Article 149 (4) gives authority to the federal government to give direction to ensure peace and economic progress, but it remains silent on the nature of the direction.
The second important part of the article is that the province has to execute the direction and does not grant the right to the federal government to act on its own. This means that Imran Khan’s government can give direction to the Sindh government to carry out its direction to improve living conditions in Karachi. It cannot act by itself and cannot bypass the Sindh government. The Supreme Court supported this view when it recently stopped the federal government from taking over three hospitals in Karachi.
Now let us look at the political perspective. Imran Khan is an unstable man and it is for this reason that he takes a lot of U-turns. He is also shallow and lacks the intellectual depth to understand whether a decision is constitutional and lawful or not. It is for this reason that their government’s reference filed against Justice Faez Issa, appointments to ECP, ordinance to waive Rs208 billion of GIDC, and now Article 149 are constitutionally questionable. What concerns me more is that the president and federal law minister have been taking such decisions whose constitutional veracity is questionable. The law minister seems to be an unlawful minister.
Why has Imran Khan created such a constitutional crisis? The answer is simple; to keep the focus away from the bad performance of his government. He is failing in all aspects of governance whether it is economy, foreign relations, trade, social issues or security policies. He and his team are unable to govern Khyber Pakhtunkhwa, Punjab and the central government but they are proposing that they can run Karachi better than anyone else. Who would believe that? One of their key partners is MQM-P, of which the Law Minister Farogh Naseem is a member, has mismanaged Karachi for almost 40 years. Imran Khan should first get rid of them and hold them accountable before demanding that he be allowed to run the affairs of Karachi.
I have issued my verdict a long time ago. The governance will not improve until and unless a stable and capable person is made head of government. Supporters of Imran Khan have labeled me a hater of their PM. It is beyond them to accept that the person is simply incapable. If they want to prove me wrong then their PM has to perform rather than encourage his trolls to issue threats to his critics.
His supporters also want me to propose an alternative name. It is not my place to suggest a name for the office of PM but if they insist then I can propose some names, but only at the right time. Time is also running out for ‘third umpire’. Their experiment has failed miserably and they should accept this failure with grace.
Before talking about Article 149 (4), I want to briefly talk about constitutional design. One of the key challenges faced by any constitutional writer is to find a balance between competing ideas of flexibility and rigidity. A constitutional article should not be so narrow that it does not allow dealing with an unforeseen situation. But it should be rigid enough to clearly define the lines of authority so that there is no ambiguity and vagueness, which can otherwise result in infighting and lead to a constitutional crisis.
I have read the 1973 Constitution a 100 times. Every time I have read it, my impression is reaffirmed that it is a badly written document and is one of the main reasons why our society has remained unstable. This faulty foundation stone will keep us from making real progress towards a better future.
Now let us consider Article 149 (4). Here is the exact wording of this article:
“The executive authority of the Federation shall also extend to the giving of directions to a Province as to the manner in which the executive authority thereof is to be exercised for the purpose of preventing any grave menace to the peace or tranquility or economic life of Pakistan or any part thereof.”
This article does not have any authority without Article 149 (1) which states:
“The executive authority of every Province shall be so exercised as not to impede or prejudice the exercise of the executive authority of the Federation, and the executive authority of the Federation shall extend to the giving of such directions to a Province as may appear to the Federal Government to be necessary for that purpose.”
Article 149 (1) talks about the supremacy of the federal authority over the authority of a province. Like the rest of the Constitution, this article is very vague and circular. It demands that the provinces have to ensure on their own that they are not impeding the authority of the central government. Then it instructs the provincial government to adhere to the direction of the federal government to ensure such compliance. But what is the nature of this direction? What happens if the province ignores this direction? Who decides that there has been prejudice or the impeding of federal authority by a province? These important questions are unanswered and add to the ambiguity.
In the absence of Article of 149 (1), Article 149 (4) cannot grant any authority to the central government over the provincial government. But the way the Constitution is written implies that article 149 (4) can be applied without any recourse to Article 149 (1). Though Article 149 (4) gives authority to the federal government to give direction to ensure peace and economic progress, but it remains silent on the nature of the direction.
The second important part of the article is that the province has to execute the direction and does not grant the right to the federal government to act on its own. This means that Imran Khan’s government can give direction to the Sindh government to carry out its direction to improve living conditions in Karachi. It cannot act by itself and cannot bypass the Sindh government. The Supreme Court supported this view when it recently stopped the federal government from taking over three hospitals in Karachi.
Now let us look at the political perspective. Imran Khan is an unstable man and it is for this reason that he takes a lot of U-turns. He is also shallow and lacks the intellectual depth to understand whether a decision is constitutional and lawful or not. It is for this reason that their government’s reference filed against Justice Faez Issa, appointments to ECP, ordinance to waive Rs208 billion of GIDC, and now Article 149 are constitutionally questionable. What concerns me more is that the president and federal law minister have been taking such decisions whose constitutional veracity is questionable. The law minister seems to be an unlawful minister.
Why has Imran Khan created such a constitutional crisis? The answer is simple; to keep the focus away from the bad performance of his government. He is failing in all aspects of governance whether it is economy, foreign relations, trade, social issues or security policies. He and his team are unable to govern Khyber Pakhtunkhwa, Punjab and the central government but they are proposing that they can run Karachi better than anyone else. Who would believe that? One of their key partners is MQM-P, of which the Law Minister Farogh Naseem is a member, has mismanaged Karachi for almost 40 years. Imran Khan should first get rid of them and hold them accountable before demanding that he be allowed to run the affairs of Karachi.
I have issued my verdict a long time ago. The governance will not improve until and unless a stable and capable person is made head of government. Supporters of Imran Khan have labeled me a hater of their PM. It is beyond them to accept that the person is simply incapable. If they want to prove me wrong then their PM has to perform rather than encourage his trolls to issue threats to his critics.
His supporters also want me to propose an alternative name. It is not my place to suggest a name for the office of PM but if they insist then I can propose some names, but only at the right time. Time is also running out for ‘third umpire’. Their experiment has failed miserably and they should accept this failure with grace.