APART from the boring old repetitive ‘news’ that graces the pages of our press each day (the most noteworthy being ‘President and prime minister meet and discuss matters of mutual interest’) we had two interesting news items, one that could be of importance to the moderately enlightened Islamic Republic of Pakistan and the second that was merely nostalgic.

Adwaitya (The Only One) was a giant Aldabra tortoise, one of four brought by seamen from the Seychelles in 1875 and gifted to Robert Clive of the East India Company. Three tortoises died soon after they arrived in Kolkata but Adwaitya spent his early days living in Clive’s garden. He later moved to Alipore Zoo. Records show that he was born in 1750 but there are claims that he was born earlier, in 1705. Whichever, he vastly exceeded the average lifespan of the Aldabra tortoise which is somewhere exceeding a mere 100 years. Adwaitya sadly died in Kolkata zoo last Thursday at the grand old age of (at least) 255. He had been ill for several months — but up to then was in fine fettle.

Of weightier import were two observations made last week by the Council of Islamic Ideology. Firstly that acts of terrorism cannot be equated with jihad, and secondly that the Hudood Ordinances have not been successful in controlling crime falling within their ambit. Nevertheless, they are dilly-dallying, they are not forsaking the status quo and have but come out with the startling conclusion that there are two schools of thought pertaining to the contents of these iniquitous ordinances — one which maintains they are ‘divine’ and the second that holds that they were framed by men.

Last week I touched on the subject of the impending destruction of what remains of Jehangir Park (Behram Bagh) in Karachi’s Saddar area and of the closure of the city’s only animal hospital, the Richmond Crawford on M A Jinnah Road. We have good news on both fronts. Our city government marauders have shelved them. However, we must remain alert. As they say in Bushland, ‘eternal vigilance is the price of liberty.’ Our hydra-headed monster may well arise once again, mobilized as it is by ignorance.

To those in Gujranwala or Pind Dadan Khan, who seek my help in saving their open spaces, I say : Go to court. Mentioned in my last column were excerpts from two judgments which will help, and hereunder I quote from another which will help even more.

From the Order of 7 February 2006, Supreme Court of Pakistan, Constitutional Petition No.36 of 2005 (Conversion of Public Park into a Mini Golf Course), Moulvi Iqbal Haider vs. Capital Development Authority etc. Chief Justice Iftikhar Muhammad Chaudhry, Justrices Mian Shakirullah Jan and Saiyed Saeed Ashhad.

“Admittedly, a public park, if it is earmarked in a housing scheme, creates a right amongst the public and that right includes their entry in the park without any obstacle, being a fundamental right enshrined in Article 26 read with Article 9 of the Constitution. It may be noted that the liberty of a person to have access or to utilize a right available to him cannot be taken away by converting such a facility into a commercial one, for the purpose of extending benefit to a third person, because in instant case a considerably big plot of land measuring five acres has been handed over to Respondent No.2 at a throwaway lease money, causing huge loss to the public exchequer. Therefore, taxpayers have a right to inquire from CDA as to how a right of life and liberty can be denied to them....

“One paragraph from the said book compiled by the CDA, Government of Pakistan, i.e. Communities & Housing, composed by Doxiadis Associates, Consulting Engineers, is reproduced herein below for convenience :

“ ‘305. The second and third categories of open spaces, that is the public playgrounds, playing fields, parks and public gardens, have to be reckoned together at this stage since it is as yet to yearly to define exactly how much will go for playing fields and how much for green spaces. These spaces are usually planned together in broader areas, and only after detailed planning is a decision taken in each a case as to exactly how much will go for playgrounds and how much for gardens and parks. It has to be borne in mind that all these are general averages, since the need for parks, gardens and playgrounds differs enormously from area to area, and from one social, professional or income group to another. For example, high-income groups, which have their private gardens, do not need public gardens and parks as much as the low-income groups which are deprived of the benefit of having their own private garden. On the contrary, higher-income groups may need playing fields requiring more space, like tennis, playgrounds, etc, which the lower-income groups may not need to the same extent.’

“A perusal of the above paragraph is sufficient to hold that the Jubilee Park or Public Park is meant for the use of the general public, the majority of which, i.e. 90 per cent, is living in the vicinity. Under Article 26 of the Constitution it is the fundamental right of the citizens to have access to public places of entertainment or resorts. As per the socio-financial status of the citizens of Pakistan, the majority of the public is not in a position to afford the luxury of joining mini-golf courses along with their children, subject to payment of tickets etc....

“The words ‘pro bono publico’ as defined in Black’s Law Dictionary, Chamber’s Dictionary, and the Oxford English Dictionary generally means ‘for the public good’ or ‘for the welfare of the whole,’ being or involving uncompensated legal services performed especially for the public good. ‘Pubic interest’ in Black’s Law Dictionary has been defined as the general welfare of the public that warrants recognition and protection, something in which the public as a whole has a stake, especially an interest that justifies governmental regulation. It thus signifies that in case of public interest litigation one can agitate the relief on one’s own behalf and also on behalf of the general public against various public functionaries, where they have failed to perform their duties relating to the welfare of the public at large which they are bound to provide under the relevant laws....

“The conditions laid down under Article 184(3) of the Constitution that the question of public importance with reference to the enforcement fo fundamental rights are not available, whereas in the instant case, on account of the conversion of Jubilee Park into a commercially-oriented amusement park, the fundamental rights of the public have been violated and due to non-enforcement of the public rights enshrined in Article 26 of the Constitution, the question of public importance has been made out. Therefore, the petition is maintainable, particularly when there is no disputed fact as has been noted hereinabove. This Court, and the High Courts, in such cases have encouraged invoking the jurisdiction of the courts directly with a view to do complete justice....

“This principle has also been reiterated in the case of Ardeshir Cowasjee vs Karachi Building Control Authority (1999 SCMR 2883) wherein it has been held that without obtaining no objection from the general public such plots cannot be used for any other purpose. As itr has been noted hereinabove, in the instant case objections were not invited from the general public by the competent authority before converting Jubilee Park into a commercial amusement park with the collaboration of multinational companies, delegating powers to Respondent No.2 to enter into a joint venture or franchise to give licenses to local or international parties, food chains, etc. In our opinion, such delegation to private persons to further their financial interests in a high degree is tantamount to depriving the authority as well as the public of their valuable rights for whose benefits such authority has been created and apparently such responsible officer/official of the authority is called for in view of the judgment of this Court, Pervaiz Oliver vs. St Gabriel School (PLD 1999 SC 26) wherein it has been held that ‘no public property, big or small, tangible or intangible, can be disposed of except in accordance with law. Those who transgress, expose themselves to the severest penalty under the law.”

And, once again, from ‘Abdul Razak vs. Karachi Building Control Authority’ (PLD 1994 SC 512 at 527) : “We may point out that even under the Order, the KDA is not authorized to change the use of any amenity plot without inviting objections and without obtaining the order of the government.” At least our superior courts are working, functioning, moving in the right directions. So there is hope.
E-mail: arfc@cyber.net.pk

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