The LHC’s gift to the PML-N

On Thursday, April 16, a Lahore High Court bench headed by Justice Mansoor Ali Shah ordered the Lahore Development Authority (LDA) to suspend all work on the 7.5 kilometre signal-free corridor on Jail Road that is part of the overarching transformation of infrastructure by the current government.

The immediate and over-simplified interpretation of this judgement is that it challenges the PML-N leadership. For many, this is automatically seen to be a good thing, given the dominant parliamentary position the PML-N enjoys in Punjab, and a governance style more dependent on the personality of the chief minister, than it is on a systemic effort to validate and deepen our fledgling democratic institutions.

If, like me, you are a fan of both the Punjab chief minister and of infrastructure in general, you would be forgiven for being instinctively suspicious of the judgement. Why should Pakistan get bogged down in the minutiae of things when we are decades behind in our development of urban infrastructure? More importantly, why are the courts trying to handcuff the one chief minister in the country who, despite many flaws, has developed a well-deserved reputation for being a tireless problem solver and builder?

Then again, maybe a carte blanche to a chief executive that gets things done is a recipe for disaster that we have met before? Maybe, instead of just going with the immediate first instinct, we should think this through more carefully. Maybe the justices of the LHC have examined the merits of the case, and have acted in the larger public interest, with no prejudice to either the concept of infrastructure, or the brilliance of the chief minister.

Here are four questions that can help us better understand the LHC decision on the LDA and the potential it offers for our collective future.

First, who decides where and when to put new roads in place in Pakistan? Second, how did a piece of urban infrastructure investment land before a bench of the LHC? Third, what is the rationale for the court putting the brakes on the corridor? Fourth, how should the Punjab Chief Minister Sharif and the PML-N react?

The question of how decisions about infrastructure are made in Pakistan is at the heart of this case. Depending on the total size of the investment, infrastructure is decided upon through the planning departments at the provincial level, or the planning commission/ministry at the federal level. Approval for infrastructure projects tends to require not only direct technical inputs from the planning departments, but also committee-based approval that represents a broad spectrum of governmental departments.

The Jail Road signal-free corridor was to build two underpasses and seven signal-free U-turns, at a cost of roughly Rs1.3 billion. Yet at no stage whatsoever did this decision or any decision like it require the input of people living on Jail Road, or those that use Jail Road, or those that could use Jail Road. A series of provincial and federal civil servants made every decision, at every stage, about this project, save the one big decision, which was most likely made by the one big man in Punjab, Chief Minister Sharif: ‘just do it’.

So how did this issue land in the LHC? The short version of the story is that citizens learnt about the project and were outraged for a variety of reasons. Fahad Malik filed a petition against the project because he learnt that it was proceeding without the mandatory Environmental Impact Assessment. A collective of over twenty citizens, including I A Rehman, Ayaz Amir and Salman Akram Raja filed a petition because of what they felt was the exorbitant cost of the project, relative to the needs of the city – with one estimate of the population of motorists among Lahore’s total population being as low as eight percent.

A number of petitioners were concerned about the provincial government essentially building infrastructure by fiat, rather than through participatory and consultative methods, as one may expect, in a democracy. Perhaps the most vital argument deployed by petitioners and amicus alike? That decisions like the signal-freeing of Jail Road belong to local governments, not to executive offices responsible for the governing of a province of nearly 100 million people.

The LHC’s short order is a fascinating read. The first part of the order sets out a normative hierarchy of legal considerations that places the LDA, first, within the confines of Article 140A of the constitution, and second, within the confines of the Punjab Local Government Act of 2013. In doings so, it locates the LDA Act of 1975 as subservient to the functions and roles of the local government. We may have to wait for the publication of the full judgement to understand the court’s thinking better, but there’s little left to the imagination here: the LHC is saying that Lahore Division cannot be run out of the chief minister’s office.

Here’s what that means.

The LDA board is made up of the CM as chairman, at least two MPAs, the Chairman P&D, three provincial secretaries, the commissioner of Lahore division, the top managers of the LDA itself, two “technical experts” and at least two members of “local government”.

Since there is no local government, the LDA is essentially a vehicle to do the bidding of chief ministers. Now since chief ministers, and especially this chief minister, tend to be busy with a thousand other things, the LDA then essentially becomes a vehicle for federal bureaucrats (mostly DMG/PAS officers) to distribute Rs1.3 billion to construction companies so that their black Toyota Corollas can drive through past Kinnaird College much faster. We can do better than this.

The LHC decision to halt the Jail Road signal-free corridor has been necessitated by a broken, dysfunctional system of governance that some citizens sought to challenge. This judgement has occurred at a very critical time. Three important things are happening.

First, billions of dollars of potential foreign direct investment from China hang in the balance of Pakistan’s ability to quickly and effectively build a route from China to the Arabian Sea – which can have a transformational impact on our economy and standing in the region and the world.

Second, the Supreme Court has ordered provinces to conduct local government elections; Khyber Pakhtunkwha’s is due at the end of May, Punjab’s sometime in September.

Third, the frustration that powered Imran Khan’s dharnas is licking its wounds.

How should CM Sharif and the PML-N react to the LHC judgement? In a manner that signals Pakistan’s ability to competently build infrastructure, whilst adhering to the constitution’s federalist vision, and ensuring that Insafian sentiment is not given a boost by any rash or imperious decision-making, or even the perception of the same.

The N League has already signalled that it plans to take the issue to the Supreme Court. It should reconsider.

There is clearly a broad vision that the PML-N leadership has for the country. Despite all the hype, the party continues to be immensely popular in Punjab. Quite apart from whether it has the right vision or not, it seems to be repeatedly run into the perception that the Sharifs want to do things their way, and all opposition to their plans is ill-conceived and ill-willed. But not every voice in Pakistan that asks questions of the Sharifs comes from a D-Chowk kind of place.

The PML-N can be a harbinger of genuine governance reform by being at the forefront of the move toward empowered local governments. This means having prominent party members seeking local office, in both KP and Punjab. When the dust settles on the Shahbaz Sharif era, the party’s strength in Punjab will not come from the DMG officers that scurry about at the CM’s discretion, it will come from its roots at the union council level. The work for that eventual day can begin now. Concerned citizens, petitioners and the LHC have given the PML-N the best possible long-term gift imaginable: the opportunity to deepen and sustain its base of power.

Will the PML-N accept this gift, or will it reject it?

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