By Mushtaq Ghumman

Transparency International- Pakistan (TI-P) has termed the draft law to regularize illegal buildings in Sindh as violation of Supreme Court and contempt of court, which can be struck down.

The assumption has been conveyed by TI-P in a letter to Governor Sindh Imran Ismail, written by its Chairperson Yasmeen Lari and Vice Chairperson Justice (retired) Nasira Iqbal.

According to TI-P it has received a complaint on the allegation of violation of Constitution of Pakistan by the Sindh government to regularize illegal buildings through an Ordinance.

The complainant, TI-P says, argues that as soon as the Governor signs the Ordinance, demolition works on illegal buildings will be stopped for a period of 90 days due to which there will be a moratorium or a temporary suspension on demolition activity carried out by the relevant authority on the irregular construction/ building for the period of ninety days after the commencement of this ordinance.

It has also been alleged that the promulgation will allow the government to form a Commission -Sindh Commission for regularization of construction — to carry out the provisions of the Ordinance. A retired judge of the apex court or Sindh High Court will be the chairperson, and the Secretary of Local Government and Housing Town Planning, Government of Sindh, its secretary.

The Committee will have the following five members apart from the chairman and secretary: (i) Minister, Advisor, or Special Assistant to the Chief Minister for Law; (ii) Chairman ABAD or a member nominated by him; (iii) an architect/town planner with at least 20 years of experience; (iv) an advocate or a legal expert with at least 20 years of experience in the applicable laws; and (v) any other member or professional from the public or private sector.

The Chief Minister will name the members of the Committee within 15 days after the promulgation of the Ordinance.

The Commission will take cognizance of any irregular construction on receipt of an application or through its own motion, issue directions to a local government or the competent authority under the applicable laws for sustainable development of the area after taking into account the violation of planning standards in an irregular construction, and (i) direct the local government or the competent authority on an application of a resident or owner in any unapproved construction to finalise long-pending applications and cases under applicable law within a stipulated period of time; (ii) direct a local government or the competent authority or any other agency concerned to take punitive actions in accordance with the applicable laws including initiation of criminal proceedings under any other law against the sponsor for any illegality or violation of law which cannot be regularized under this ordinance or the sponsor fails to seek regularization under this ordinance, (iii) impose any penalty upon sponsors under this ordinance, recommend disciplinary action including initiation of criminal proceedings against the officers and officials responsible for illegal or irregular construction and for non-compliance of the directions of the commission, (iv) warn public at large in respect of any illegal or irregular construction through print and electronic media; and (v) recommend amendments in the applicable laws and the rules and/or regulations made under them. And decide each application preferably not later than 60 days from the date of initiation of proceedings.

TI-P is of the view that promulgation of this Ordinance is against the Supreme Court Order in 2020 SCMR 111, Abdul Karim Ansari Vs Nasir Salim Baig of January 22, 2019, which states “no amenity plots meant for parks, playground, and other amenities, their conversion shall not be allowed for commercial use that of marriage hall, markets, shopping malls, apartments, marquees, petrol pumps/CNG stations, etc.

This complete ban in cessation of conversion of residential plots, amenity plots like that of parks, playgrounds and other amenities shall apply all across Karachi City including cantonment areas. Neither Sindh Building Control Authority (SBCA), nor any other authority shall approve any conversion including pending ones.”

According to TI-P, it has examined the complaint and following are TI-Pakistan comments/ recommendations: (i) prima facie, draft Ordinance is against the Supreme Court Order in 2020 SCMR 111, Abdul Karim Ansari Vs Nasir Salim Baig of January 22, 2019, and may amount to contempt of court, and may be outrightly strike down by the superior courts; (ii) Article 189 of the Constitution of Pakistan, decisions of Supreme Court binding on other Courts, states. Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other courts in Pakistan; and (iii) 190- Action in aid of Supreme Court, states, “all executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court.

This story was first published in Business Recorder on Dec 8, 2021.