Once again there is a tug of war between the mesmerising, mountainous capital Islamabad and the province of Sindh, where the world’s oldest civilization blossomed and the region praised by Alexander the great himself. The centre through its Law Minister hinted towards invoking Article 149(4) of the Constitution of Islamic Republic of Pakistan 1973. The Federal government believes that Article 149(4) will allow Islamabad to take control of Karachi thus, sparking another spat between the Federal government and Province of Sindh. The Federal government is under the impression that, using the best of its endeavours it would take corrective measures to build a system of local government for Karachi.

The question is whether the ambit of Article 149(4) permits the Federal government to take administrative control of Karachi. To the executive’s dismay, it does not.

Constitutional provisions reflect the sanctity of the general will of the society. Owing to this, societies often differ one another on linguistic, religious, ethnic and cultural basis making it trite that different societies will have differing general will. The exercise to understand the general will of a particular society rests upon the historical context within which the Constitution was assented to by the people.

During the British Raj of the Subcontinent, the constitutional arrangement was composed of a strong unitary federation which controlled a vast number of subjects, leaving provinces with little subjects to legislate upon. Following that, the Government of India Act 1935 yet again codified the omnipotence of the Governor General. Mr Jinnah capitalised on the sentiments of the provinces which later acceded to Pakistan for having maximum autonomy and a parity of power between the Provinces and the Centre. The relationship between the federal and provinces have throughout our history been marred with upheavals. The Constitution, coupled with its 18th Amendment paved the way for greater provincial equality.

Article 149(4) stipulates:

“The executive authority of the Federation shall also extend to the giving of directions to a province as to the manner in which the executive authority thereof is to be exercised for the purpose of preventing any grave menace to the peace or tranquillity of economic life of Pakistan or any part thereof.

It is noteworthy that the executive authority of the federation aforementioned is not unfettered. On the contrary, under Article 97 the latter authority shall only extend to matters in which the Parliament has power to make law.”

Article 97 provides:

“Extent of executive authority of Federation. — 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, including exercise of rights, authority and jurisdiction in and in relation to areas outside Pakistan:

Provided that the said authority shall not, save as expressly provided in the Constitution or in any law made by [Majlis-e-Shoora (Parliament)], extend in any Province to a matter with respect to which the Provincial Assembly has also power to make laws.”

The Parliament can only legislate on “inter-provincial matters” as enunciated in the Fourth Schedule of the Constitution. The use of the singular word “Province” in Article 149(4) signifies the relationship between a Province and the Federal only but not between two or more Provinces, therefore, Article 149(4) does not in any way deal with the “inter-provincial matters” as a result, Article 149(4) cannot be conceived as validating Federal government taking the administrative reins of any Province.

Indeed, the second half of Article 97 permits the operation of Federal executive authority under Article 149(4). However, where there is a conflict between the Federal law and Provincial law in an area where the Provinces are entitled to legislate, then the latter law would prevail over the Parliament’s. As Provinces effectively legislate on local administration with absoluteness, the executive authority of Provinces are extended to those as per Article 137. It would logically then follow that, if a law passed by the Parliament on areas in which Parliament is incompetent to legislate cannot nullify the law made by the Provincial Assembly then it would certainly stand to reason that, the Federal government is not empowered to issue binding directions to the Provincial government under Article 149(4) let alone take administrative control of Karachi.

If the Federal government attempts to administratively control Karachi, it is likely that the court will hold such actions falling foul of the rule of occupied field pursuant to its decision in The Province of East Pakistan v Siraj ul Haq Patwari. As Part 5 of the Constitution seeks to garner unwavering trust and a spirit of co-operation between the Federal and Provinces as well as amongst the Provinces, the furthest the Federal government is permitted is to issue directions of non-binding nature to the provinces. The Supreme Court in the case of Iftikhar Hussain Shah v Pakistan 1991 SCMR 2193, unequivocally laid that, “the Provincial government is not the agent of the Federal government so, the Federal government is not empowered to taking over, extend, supplant the powers of the Provinces in matters on which power to give direction has been recognised”.

In the wake of the sordid fall of Dhaka and the genesis of Bangladesh, the drafters of the 1973 Constitution realised the urgency to formulate a constitutional arrangement to bring Federal-Provincial parity. In attempting to salvage the wreckage of the East Pakistan debacle, Prime Minister ZA Bhutto’s in one of his first official statements remarked that, “we are prepared to give maximum autonomy to the Provinces”. By stretching the words of Article 149(4) “preventing any grave menace to the peace or tranquillity of economic life of Pakistan” to give effect to the whimsical idea of administratively controlling Karachi from Islamabad would be contrary to the surrounding circumstances that had led to the formulation of the 1973 Constitution and 18th amendment. Thus, if we are to accept the interpretation of the Federal government and allow it to stand at the helm of Karachi’s local administration, which under the Constitution is the demarcated domain of the Sindh government and Sindh Assembly then, are we not allowing the autonomy of Sindh to be curtailed? If so, then are we not stoking the flames of strong ethnic sentiments from minority Provinces? Are we not instigating the Minority provinces to debilitate their trust in the Federation which is predominantly controlled by Punjab?