The invocation of Article 149(4) could do wonders for Karachi.
Ever since Federal Minister for Law Faroogh Nasim made remarks over the invocation of Article 149(4) of the Constitution of Pakistan, many sides have come out to support or reject the suggestion. One of the broadly drawn lines for such support or rejection has been based on ethnic consciousness. While some quarters appreciated the suggestion and remarked that taking administrative control of Karachi from the Sindh government was a brilliant move, others dismissed the suggestion outrightly as a conspiracy to divide Sindh. Both quarters could not be more wrong.
Lets first address the elephant in the room. Can Karachi be separated from Sindh by invoking article 149(4)? Absolutely not. No province within Pakistan can be divided unless and until a vote of a two-thirds majority is passed by the provincial assembly of the province concerned under article 239(4) of the Constitution of Pakistan. This means that 112 out of 168 members of the Sindh Assembly would have to vote for any division of Sindh. Taking into account the public sentiment that subsists in Sindh, this is an impossible task. Why then political parties from both sides of the divide in Sindh have made the invocation of 149(4) an issue of Sindh’s division?
The answer to that question lies on how voters in the province have historically been divided between ethnic lines. Whenever in need of dire political support, the MQM raises the separate province issue, only to dump it once its political motives are achieved. There is a history of such demands by the MQM pre and post the minus Altaf formula. Once again, some members of the party came out in the support of the division of Sindh when it was never upon the cards, fairly and squarely out of the ambit of article 149. In the same way, nationalist Sindhi parties came out against such demands when no such suggestion was part of the debate from the very beginning. It cannot be said that the political leadership of the two quarters are simpletons, who did not understand the ambit and implication of article 149. Rather, they are oppugnant, sharp and shrewd to understand that by flaring emotions on the issue, political support was forthcoming. The MQM is in appalling need of such support after losing Karachi to the PTI and the PPP is in dire need due to the ongoing accountability process. Clearly, raising this issue has benefitted both sides of the debate.
The ambit of Article 149(4) is limited to the exercise of the executive authority of the federal government in a province. The article does not allow interference in the executive authority of a province, rather only in matters where the federal government already has the power to make decisions. This has to be facilitated by the provincial government on the directions of the federal government. A brilliant example would be the law and order situation in Karachi, wherein when it was in the worst state possible, the federation could have directed the provincial government to wipe out gang wars in the city. More effective and radical steps could then be taken such as the imposition of emergency or governor’s rule if the province failed in the discharge of the said functions. The invocation of 149(4) is the least interventionist clause through which the federal government can play its constitutional role in Karachi.
The invocation of Article 149(4) could do wonders for Karachi and help the federal government discharge its constitutional role. The federal government will only issue directions to the provincial government; it will be the province that would still be in charge of fulfilling such a constitutional request. Provincial autonomy cannot, therefore, be breached through this article. It could further be decided that in case such directions are passed then the federal government shall also provide special funds for undertaking the implementation of such directions following the successful American model. New infrastructure in Karachi and resolution of governance issues should be the priority of the federal government after the invocation of 149(4), which is a constitutional obligation of the federal government. Since the provincial government will still be in charge of the governance, therefore Karachi package which was to be spent by political orphans can now be spent through duly elected representatives of the people with a thorough oversight by the federal government so that the funds may not be siphoned off. Such a move should be celebrated by champions of provincial autonomy rather than be decried, but at times, populism and the worth of the vote trump other considerations.
The article can be used only to prevent grave menace to the peace or tranquillity or economic life of Pakistan or any part of Pakistan. It is a wide article and when it is to be utilised is a political question if there is an objective criterion to justify the decision. In case the article is invoked, the Federation will have to be careful not to overstretch the meaning of the article and not to interfere in the exercise of executive authority by the provincial government. If the article is used only for the purposes for which it was enacted, it will reap fruitful results.
The writer is a barrister, who has an interest in Pakistani current affairs, economy, constitutional developments, foreign policy and international law