ON Aug 31, 2020, the president of Pakistan promulgated the Pakistan Islands Development Authority Ordinance whereunder the two islands, the Bundal and Buddo islands (the “islands”), both in the coastal waters of Karachi, were placed under federal control and jurisdiction. The ordinance enables the establishment of the Pakistan Islands Development Authority by the federal government with its head office at Karachi (Section 4).

The prime minister is the patron of the authority and is empowered to give general policy directions to the authority (Section 6). A policy board of five to 11 members appointed by the federal government (Section 6[2]) shall, among its broad and wide powers, “establish and maintain strategic directions of the Authority” (Section 9[2][a]). All acts of the authority are subject to the “control” of the federal government and the federal government may “revoke, suspend or modify” any acts or proceedings of the authority (Section 5[4]). A non obstante clause reaffirms the paramount supremacy of the authority and the ordinance: the provisions of the ordinance shall have “effect notwithstanding anything contained in any other law for the time being in force” (Section 53).

The federal capture of the Bundal and Buddo islands is accomplished by providing a series of activities that can be undertaken by the federal government in “specified areas” which are explained to solely be the Bundal and Buddo islands (Section 2[s] read with the First Schedule). Section 3, importantly, lays down:

“(1) The specified areas shall vest in the Federal Government and the Authority shall, for and on behalf of the Federal Government, possess, control, manage and deal with the specified areas in accordance with the provisions of this Ordinance.”

The Pakistan Islands Development Authority Ordinance goes against the spirit of the 18th Amendment.

Given broad powers, the authority and the policy board are tasked with the responsibility for the reclamation, master planning, urban planning, and spatial planning for the islands (Section 5[a] and Section 9). It is significant that the procurement and outsourcing for the development schemes of the islands is not subject to the Public Procurement Regulatory Authority Ordinance, 2002, which provides important safeguards against corrupt practices (Section 19[3]).

It is the principal contention of these submissions that the ordinance is unconstitutional, ultra vires and particularly against the letter and spirit of the Constitution (Eighteenth Amendment) Amendment Act, 2010, which is anchored in the grant of maximum autonomy to the provinces.

Let us begin with the basic territorial provisions of this Constitution. Article 1(2) declares that: “The territories of Pakistan shall comprise:-

(a) the Provinces of Balochistan, the Khyber Pakhtunkhwa, the Punjab and Sindh;

(b) the Islamabad Capital Territory, hereinafter referred to as the Federal Capital; and

(c) such States and territories as are or may be included in Pakistan, whether by accession or otherwise.”

It does not require much analysis to conclude that the only territory of the federal government is the Islamabad Capital Territory and such “States and territorities as are or may be included in Pakistan by accession or otherwise”.

This would show that the islands, contiguous to the province of Sindh, are a part of Sindh. Old records would likely support this. It would be dangerous to contend that the islands are not a part of Sindh as this would open the suggestion that they are res nullius as not being a part of the territory of Pakistan.

Attention is, however, drawn to Article 172:

“(1) Any property which has no rightful owner shall, if located in a Province, vest in the Government of that Province, and in every other case, in the Federal Government.”

If the islands vest in and are a part of Sindh under the Constitution, the federal government cannot, under the ordinance, vest them in the federal government as it has purportedly done under Section 3(1) of the ordinance. The federal government is also generally barred under Articles 97 and 142 to exercise its executive authority or legislate in respect of the islands:

“Article 97: Subject to the Constitution, the executive authority of the federation shall extend to the matters with respect to which Majlis-e-Shoora (Parliament) has power to make laws….

“Article 142: (a) Majlis-e-Shoora (Parliament) shall have exclusive power to make laws with respect to any matter in the Federal Legislative List;

… “(c) Subject to paragraph (b), a Provincial Assembly shall, and Majlis-e-Shoora (Parliament) shall not, have power to make laws with respect to any matter not enumerated in the Federal Legislative List;”

The abolition of the Concurrent Legislative List and a modest Federal Legislative List considerably reduced federal involvement in the affairs of the provinces after the 18th Amendment.

The Sindh government has also relied on Article 239(4) to object to the legitimacy of the ordinance. This article bars a constitutional amendment altering the limits of a province without the two-third consent of the total membership of its provincial assembly.

The economic and environmental considerations for the development of the islands were well highlighted by an editorial in this paper:

“Real estate developers and their cronies among the ruling elite have long had an eye on the two islands in question. The area is an ecologically important site: it is part of the Indus delta where the mangrove forest cover is a breeding ground for shrimp and other shellfish. Thousands of fisherfolk depend on these islands for various fishing-related activities that make up their livelihood. However, for those holding the reins of power, the prospect of multibillion-rupee fortunes clearly trumps these ‘trivial’ human and ecological concerns.”

Prima facie, the ordinance is void ab initio and a brazen usurpation of the constitutional rights and patrimony of Sindh to the islands. Its “in stealth” promulgation without a prior discussion in the national parliament or in the national constitutional consultative and coordination bodies also arguably points to the mala fides of the federal government. The ordinance should forthwith be withdrawn/repealed to avoid any further misunderstandings between the federal government and the Sindh government.

The writer is senior advocate of the Supreme Court of Pakistan.

Published in Dawn, October 14th, 2020