“WE will probably be judged not by the monuments we build but by those we have destroyed.”
— Ada Huxtable, architecture critic

LAHORE is really the only liveable city in Pakistan. Pakistanis do not dream of turning our cities into London, New York or Prague but making them like Lahore, which is a realistic goal. At the heart of Lahore’s attraction is its heritage signified by its historic monuments. Therefore, to damage its heritage is to damage Lahore, and to damage Lahore is to shatter the dreams of Pakistanis like me.

The twin goals of heritage and development came up for adjudication first before the Lahore High Court and then the Supreme Court in the form of the potentially impairing impact of Lahore’s Orange Line Metro Train (OLMT) project on 11 sites comprising old monuments and special historic premises.

Majority; impatient pragmatism: Four out of the five judges of the Supreme Court bench, through their judgement of Dec 8, upheld the NOCs/permission letters in favour of the metro train project, set aside the Lahore High Court judgement of Aug 19, 2016 (which had set aside these NOCs), and allowed the construction to continue, subject to certain conditions.

Firstly, in the battle of competing interests between heritage and development, the majority was more inclined towards development as the Supreme Court held that “whatever set-up we may have today and whatever odds we may come across, the project of the Orange Line Metro Train … has to be launched and completed”. It went further in calling criticism against the project “paranoid” and “nothing but creating a storm in a teacup”.

Dissent, as in the metro train project, is a constitutional conversation with a future court.

Secondly, on the suggestion that in order to eliminate the adverse impact on heritage, the metro train project could be realigned or its route changed, the Supreme Court held that although “known or conventionally recognised standards of protecting the monuments cannot be adhered to without realigning the road and the track ... we cannot pursue the ideal or what ought to have been”. In short, alternatives like realignment are not financially feasible nor practically workable, without the court really examining in detail why the alternatives are impractical.

Thirdly, experts from the government’s side like the engineering company Nespak or linked to the government like Dr Uppal and Dr Ayesha Pamela or suggested by the government like M/s TYPSA, were believed completely; the court said their opinions and conclusions were never rebutted or challenged in any material way. However, it did not examine the stringent critiques of these expert reports by dissenting Supreme Court Justice Maqbool Baqar, and Lahore High Court Justice Shahid Karim.

Fourthly, there is unsubstantiated trust in the government as the Supreme Court holds that “we have no reason to disbelieve or doubt the intention of the appellants [government] and their bona fides to undertake work on the project without taking undue risk of causing damage or deterioration to a protected or special premises”, despite the overwhelming evidence that the process of approval of the NOC by the director general, archaeology, and the government were riddled with mala fides and gross illegalities, as minutely documented in the Lahore High Court judgements of Justice Abid Aziz and Justice Shahid Karim.

Fifthly, preferring local over international experts, the Supreme Court held that the petitioner/citizens “see heal-all in the arrival of the experts from Unesco ... what in the prevailing state of things would be sane, sound and sensible could be decided by the local experts”. One wonders, how Unesco, or other heritage experts, will view such statements.

Sixthly, construction is allowed of the metro train project subject to conditions. Most of these conditions are nothing new but are already contained in the government NOC and expert reports with the notable exception that a special committee of experts, chaired by a retired Supreme Court judge, is to be set up to ensure the implementation of these conditions.

Minority; realistic ideals: A judge who is largely responsible for the largest distribution of compensation in Pakistan’s legal history to the victims of Karachi’s 2012 Baldia factory fire, and a judge who survived a bomb attack by the TTP in 2013, is the Supreme Court justice who has written a powerful dissent in the metro train case. Justice Baqar’s dissent is precise and comprehensive.

Firstly, he notes that “it is nobody’s case that the OLMT project be scrapped. All that is required is to ensure that no harm to the monuments is caused”. Justice Shahid Karim explained this heritage prioritisation by holding that “the public interest in preserving the monuments far outweighs the interest of persons who shall stand to derive the benefit of travel on Orange-Line Metro rail”.

Secondly, the metro train project has been only temporarily stopped by directions that a new heritage impact assessment of the project be carried out with the review of independent experts like Unesco; and later, the DG archaeology or the government will decide regarding the issuance of an NOC “with an endeavour to find practicable and viable solutions ... so that the project may be completed as early as possible”. This is no radical judicial activism but findings that are quite reasonably practical. The key difference between the majority and minority judgements is the need for independent credible assessment.

Power of dissent: “A dissent in a court of last resort … is an appeal ... to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have betrayed” is how justice Khanna described the importance of dissent in the dark days of the emergency in India (1976). Whether it was justice Atkins in the Liversidge case (1941) or the dissents of justice Harlan or justice Shafi-ur-Rahman in the Zaheeruddin case/Ahmadiya case (1993) or the three dissenting judges in the Bhutto murder case (1979), dissents, like Justice Baqar’s dissent, are primarily about courage of conviction and a constitutional conversation with a future court.

So, in a nutshell, this majority/minority divide is about judicial approaches, which Lord Atkin explained in his dissent when he held that “I view with apprehension the attitude of judges who … show themselves more executive-minded than the executive”.

Now, only the verdict of judicial history in Lahore is awaited.

The writer is a lawyer.

Published in Dawn, January 1st, 2018