Judicial authority – the virtue of its applicability and the force of its command – is the last bastion of defence for the fundamental rights of hapless citizens, against the excesses of public and private institutions. This principle forms the bedrock of the entire Constitutional edifice of our democracy. In the absence of this foundational value, a democratic society would soon descend into a lawless fiefdom, governed through the callous embrace of a single law: might is right! And, in such a society, there will be no fundamental rights, no democratic institutions, no challenge to the strong or protection for the weak.
For this reason, above all else, the enforcement of judicial dictas is protected through the force of ‘contempt of court’, and is armed with the fullest might of the State’s cavalry.
But none of these lofty principles, including resolve of the judiciary and the corresponding strength of the State, seem to be coming to the rescue of the citizens of Karachi, in reclaiming a public amenities park from the clutches of Army Welfare Trust (AWT) and Makro-Habib, despite a judgment from the Supreme Court of Pakistan.
For those unfamiliar, facts of the case (as narrated by the honorable Supreme Court in its judgment) clarify that, in June of 2009, based on a column by Ardeshir Cowasjee, the honorable apex Court took suo moto action against the construction of a large commercial enterprise on a land that was (allegedly) reserved for public amenities playground in Karachi. As it turns out, government land, measuring 4.9 acres, in Lines Area of Karachi, had been designated as an amenity plot, dedicated for use as a playground, and was reserved for this exact purpose in the city’s Master Plan. In December of 2002, however, the then (General) President granted a 90-year lease of the said land, to AWT, for a yearly rent of Rs. 6,020. Yes – just six thousand Rupees!
AWT, subsequently sub-leased the land to Makro-Habib (for an initial term of 30 years) for an “advance rent of Rs. 100,000,000”, and Makro-Habib constructed a large commercial complex on this land.
The honorable Court, took notice of the matter in Suo Moto Case No. 10 of 2009 (2010 SCMR 885), and heard all parties concerned, including Shehri, a Karachi-based NGO that opposed the illegal actions of AWT and Makro-Habib. After an exhaustive review of the issues concerned, the Court declared that the President “had no legal authority to grant leasehold rights in the said land to AWT”, which is “without lawful authority, with the result that the same is cancelled and set at naught”. Makro-Habib was given “three months… to remove its structures and installations from the playground”, and return it “to the same condition” as it existed previously.
As can be expected, a review was filed against this judgment, which too was dismissed by the honorable Supreme Court on 21st May, 2013. Still, despite having exhausted all remedies, and the honorable Court’s judgment having reached finality, neither AWT, nor Makro-Habib, took any steps to follow the directions of the judgment. Consequently, a contempt petition was filed by Shehri, in the same year.
And despite all efforts by the residents of Karachi, led by Shehri, for over 5 years now, the contempt petition has not yet been fixed for hearing by the honorable Supreme Court. Each time they make a plea with the concerned Advocate on Record, urging to have the case fixed, they are met with the standard response that it is the sole prerogative of the honorable Chief Justice (acting through the Registrar) to decide which cases get fixed for hearing. And till such time that the honorable Chief Justice so decides, the fate of the Karachi’s resident – citizens of Pakistan, all – shall continue to exist in a limbo; while the powerful proponents of AWT and Makro-Habib continue to reap the profits of their illegal transaction. Privately, Shehri has been told that bringing the matter to Court (and thus taking on the milibus Khaki empire) was a doomed exercise from the very start. That the honorable Court – despite all its might and power against politicians and civilian institutions – shall remain impotent in the face of establishments might. And that any further agitation from Shehri (an appropriately weak name) will be met with the wrath of the mighty and the powerful.
But a new leadership is now at the helm of the Court. A leadership that has a chance to demonstrate that the age-old rhetoric of fear and frailty towards the establishment, one that has haunted our national conscience for almost 70 years, no longer holds true.
For far too long, in our national history have we lived in the shade of a Khaki shadow that is stronger and more omnipotent than the sum of our citizenry. For far too long, we have lived in the tacit realization that some institutions, some people, some ideas are far too powerful to be challenged. For far too long, we have coward behind our own insecurities to allow an entrenchment of the status quo. For far too long, we have been asked to stay silenced. To not speak. To not point. To not rebel. Because this rebellion, this challenge to the mighty comes at a cost that, individually, we are perhaps unable to bear.
Through this case, the honorable Supreme Court has the opportunity to declare, unequivocally, that the strength of our laws and the conviction of our Constitution is far stronger than the tide of power that history has burdened us with. That irrespective of who the parties to a dispute might be, or how sensitive the subject matter is, our laws will continue to swear fidelity to the equal protection of our Constitution.
It is time to break the shackles of our fearful past. It is time that our courts protect the empire of our Constitution by asserting its might against the powerful. It is time for the honorable Supreme Court to hear and decide the contempt petition pending adjudication in the Shehri case.

    The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School.