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Analysis Governance Politics

Controlling Karachi: How Article 149 Was Misinterpreted By Govt., Opposition And Media

The political turmoil in Pakistan has seen another upheaval when the federal law minister, in his wisdom, announced that the federal government is thinking about placing article 149 on Karachi. This opened a can of worms as the people of Karachi started celebrating separation from Sindh administration.

Concurrently, the Sindh government started to protest claiming an unconstitutional governor rule and the PTI supporters used this as evidence of their claim that Imran is truly our savior. The protest by the Sindh government was severe, the media itself made a hash out of it with flashing headlines of Karachi being either under governor’s rule or being pushed under federal control with the same status as Islamabad. The lawyers of Sindh protested by boycotting the courts and the opposition attacked. The government went on the defensive and backed out stating that there will be no article 149 leaving a bad taste in everybody’s mouth.

The saddest thing about this entire incident was that neither the federal government nor the provincial government had any idea what the law really was. Our elected legislators stood in the parliament giving speeches which made me wonder whether anybody had even read the law.

Part V of the constitution of Pakistan 1973 deals with relations between Provinces and Federation with chapter 2 of the part titled ‘Administrative Relations between Federation and Provinces’ contains article 149 titled ‘Directions to Provinces in certain Cases’. Article 149 itself contains nothing as to what was claimed by the federal, provincial governments or the media. In fact, this article has no relation to governor’s rule. The latter is covered by Article 234 which is an exhaustive article that prescribes procedure and conditions for governor raj.

What is the purpose of Article 149?

So, the question comes to pass, if the article 149 does not impose governor raj or make Karachi a separate administration then what does it do? The first rule in reading and interpreting sections and articles is always to read them together rather than as separate. The entire chapter 2 of part V contain articles that don’t impede the relationship between the federation and provinces but define it and how they coexist together. Article 149 is composed of 4 sections with section 2 omitted in the 18th amendment. Section 1 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.”

To understand this article we must first define what an ‘Executive Authority’ is want is its extent. Article 97 states:

Extent of executive authority of Federation. — Subject to the Constitution, the executive authority of the Federation shall extend to the matters with respect to which 1[Majlis-e-Shoora (Parliament)] has power to make laws, including exercise of rights, authority and jurisdiction in and in relation to areas outside Pakistan:

Provided that the said authority shall not, save as expressly provided in the Constitution or in any law made by 1[Majlis-e-Shoora (Parliament)], extend in any Province to a matter with respect to which the Provincial Assembly has also power to make laws.

The Article 97 states that executive authority shall extend to matters with respect to the Majlis e Shoora aka the parliament that can make laws. The article goes on to provide limitation where it states that such power shall not extend to a matter with respect to which the provincial has power to make laws. We see that the article 97 has defined and limited executive authority thus the executive authority mentioned in article 149 is exactly the authority as mentioned in article 97. So article 149 here is stating that the provincial power of legislation shall not impede the federal power of legislation and the federation may pass any direction to the province to not impede the power provided in article 97.

Nowhere does it say that the federal will separate the administration nor does it say that the federal will give commands of administration. Many fail to understand that although federal has its own concurrent legislative list (subjects upon which it can legislate) and provincial assembly is empowered to make laws on subjects not mentioned in the list in accordance to article 142(c) whereas federal is not as it cannot exercise legislative power on subjects outside the concurrent list however in article 142(b) the provincial assembly is empowered to make laws on subjects which are in the concurrent legislative list like  criminal laws, criminal procedural laws  and evidence laws as well as upon subjects not in the concurrent list. They are both co-extensive thus article 149(1) states that the executive authority of the province shall not impede the executive authority, as defined in article 97, of the federal government.

Article 149(2) was omitted so we must read article 149(3) which states:

“The executive authority of the Federation shall also extend to the giving of directions to a Province as to the construction and maintenance of means of communication declared in the direction to be of national or strategic importance.”

The legal language speaks of construction and maintenance of means of communication declared to be of national or strategic importance. Again this speaks not of administration but provides executive authority to the federation to give directions to either construct or to maintain communications or connections that are of strategic importance. A valid example would be a case where the provincial government seals connectivity to Karachi port then the federal government can utilize its power under article 149(3) to direct the province to maintain connectivity since shipping ports are under federal concurrent list and are a federal subject. However if the provincial closes the road from parliament to say nine zero then the federal cannot intervene since that is not part of the subjects of federal authority. With this let’s move to article 149(4) which states:

“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.”

Article 149(4) clearly states that the federal government shall have the power to give directions to the province as to how or in which manner the executive is to be implemented so as there will be no menace to peace or tranquility or economic life. For example, let’s say we have a dharna outside Karachi port and shipping operations are affected. The federal government will use article 149(3) to direct the government to clear the dharna and will use article 149(4) to provide manner as to which article 149(4) is to be placed like ban on use of tear gas or firearms or water guns.

The article nowhere empowers the federal government to order the provincial to remove its mayor or the district administration nor does it empower the federal government to simply take control of the province. This is not what article 149 is about.

The article defines the administrative relationship between the federal and provincial government and highlights the limits to the power and how such power cannot be impeded. This has been defined by the Supreme Court as well which stated in its judgment PLD 1998 SC 338 where the court stated that articles 148 and 149 regulate the relationship between the federal and the provincial in a situation where the application of a federal law is in question due to the rise of a situation where its applicability has come to light and in such cases the federal government takes on supervisory role where it provides directions to the provincial government as to how such laws are to be implemented. It was again stated in CLC 2009 1399 that the articles 148 and 149 have no bearing on the unbridled rights of the province.

The Sindh government of Pakistan People’s Party complained that the article will impose governor’s rule and spoke of separation of Sindh, Baluchistan and Khyber-Pakhtunkhwa and completed their transition from becoming a national party to a nationalist party. We also witnessed a law minister who was unaware of the law along with a government that does not know what the articles of constitution mean or what defines the relationship between a province and the federation.

Sadly, the opposition chose to score petty points rather than correct the government and we also saw a media that rather than correcting and questioning both, aggravated and exasperated the situation.

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