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Selective Application Of Laws: Navy Sailing Club Is A Test Case For CDA

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The Navy Sailing Club case is a test case for the state and the government of the day in particular. Will we finally see the rule of law being upheld or will there continue to be the selective application of laws against the poorest and most vulnerable in our country?

 

There are Constitutional guarantees in place for ensuring the equality of all citizens before the law. Yet, selective application of the law continues to erode the rule of law and widen the distrust between public functionaries and citizens of the country.

In the BNP v. CDA case (PLD 2017 Islamabad 81), the Honourable Chief Justice of the Islamabad High Court rightly observed: “Let no one have a complaint that he or she is being discriminated against because others are not being ruled by law”. The case concerned regulatory failure of the CDA in enforcing provisions of the CDA Ordinance 1960.

There is another case pending before the Islamabad High Court at this time, namely Writ Petition No. 832/2020 (Maqsoom Hussain v. CDA and 2 others). As the case is currently ongoing before the Court, at this stage, it suffices to share the brief facts of the case. Maqsoom Hussain is a twenty-year-old boy from Pind Dadan Khan. Hailing from an impoverished, rural background, Maqsoom moved to Islamabad and began working to save up enough money to start his own shop.

Maqsoom is an example of hard work paying off: an inspiration for young Pakistanis. He saved enough money to start his own printing and photocopying shop at the Quaid-e-Azam University and even registered the shop with the Federal Board of Revenue. At the age of twenty, Maqsoom was engaged in full-time work and contributing back to society through the payment of taxes. Unfortunately, in what has become common CDA practice, on 15 December 2019, Maqsoom’s shop was destroyed during an “anti-encroachment” drive.

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As per the Inquiry Report, this operation took place despite the fact that Maqsoom was never given notice, as required under Section 49C of the CDA Ordinance 1960. Moreover, the officials conducting the operation also felt it appropriate to destroy his private moveable property, including photocopying and printing machines, laptops and other expensive equipment amounting to over Rs11 lakh. Maqsoom is just one of many who have endured this cruelty at the hands of the CDA.

During the initial days of the pandemic in Pakistan, the CDA decided to bulldoze some of the poorest and most vulnerable citizens’ homes in G-11 katchi abaadi. Prior to this, in June last year, the CDA demolished several housing structures in another katchi abaadi in Nilor. The CDA’s heavy-handedness and contempt for the downtrodden is now at a stage where it has become an accepted fact.

However, ultimately, the CDA is a public functionary and has a fiduciary relationship with the public. Therefore, when it is not held accountable for selective application of its own laws and rules, the rule of law, on the whole, suffers in Pakistan.

No clearer illustration of the selective application of laws exists than the now completed but illegal Navy Sailing Club, which was constructed without an allotment letter. This case is an example of how, in the heart of the capital, some powerful institutions and individuals are allowed to break the law, while the CDA applies these laws solely against the poor, whose “illegal” homes and shops are demolished without so much as a notice.

The series of notices issued by the CDA to the Navy Sailing Club demonstrates how the CDA allowed this unauthorised and illegal construction to be completed, in an area that is environmentally sensitive. This is no longer just a breach of the CDA Ordinance and rules made thereunder but also a serious breach of the Pakistan Environmental Protection Act (PEPA) 1997, which requires, under Section 12, furnishing of an Environmental Impact Assessment (EIA) wherever there may be any adverse environmental impact of any project.

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The Islamabad High Court, in Writ Petition No. 1772/2020, through order dated 23 July 2020, made the following observation: “It has been consistently observed that it has become a norm for the CDA and other agencies to promptly take action against those who are common citizens and who do not have the means to influence, while the privileged and elites are being treated differently. This is unacceptable for a democratic polity governed under a Constitution and which guarantees fundamental rights”.

There are several questions that arise. First, is it solely the responsibility of the Chief Justice of the Islamabad High Court to uphold the rule of law and social justice? Does no other organ of the State have any responsibility towards helpless Pakistani citizens? Shall the citizens of Pakistan expect that it is only the high courts that will observe requirements under the law and treat all citizens equally?

Second, will the CDA be held accountable for its regulatory failure in this case? Third, will the Navy Sailing Club be demolished as it is a clearly illegal construction? This then raises the question that if it is not demolished but in fact regularised, will this open the way for legalisation/regularisation of katchi abaadis and shops belonging to the poor? Under Article 25 of the Constitution, all citizens of Pakistan are equal and thus entitled to equal protection of the law.

The Navy Sailing Club case is a test case for the state and the government of the day in particular. Will we finally see the rule of law being upheld or will there continue to be the selective application of laws against the poorest and most vulnerable in our country?

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