- The recent spate of cases are raising basic questions
By: Amjed Jaaved
The Khyber Pakhtunkhwa government has decided to go to Supreme Court against the Peshawar High Court’s judgment on the Bus Rapid Transit (BRT). The court has directed the Federal Investigation Agency to probe the project. The bench, headed by Chief Justice Waqar Ahmad Seth (who also authored the Musharraf case verdict as head of the Special Court that tried him) was irked by a number of bloomers: (a) “Visionless” concentration of Asian Development Bank (ADB) loans in just one project without an in-depth feasibility study; (b) cost increase from Rs 49.453 billion in 2017 to Rs 66.437 billion in 2018, of which Rs 53.320 billion was in the form of a loan from the ADB; (c) the “per kilometer cost of the BRT being exorbitantly high” at Rs2.427 billion; (d) overpaid non-managerial staf;. (e) provision of expensive vehicles to the secretary transport, the director general of the Peshawar Development Authority (PDA) and the commissioner Peshawar by consulting firm Calsons and Maqbool, which had been blacklisted by the Punjab government, yet taken on board for the BRT in Peshawar; (e) the nexus between incumbent Defence Minister and former Chief Minister Pervez Khattak, the Director General, PDA, and Azam Khan, Principal Secretary to the Prime Minister.
Our courts are submerged in a plethora of cases with a political tinge. This trend is fatal for democracy. Let us not forget what then Chief Justice Muhammad Muneer said shortly before pronouncing his verdict in the Dosso case: ‘When politics enters the portals of Justice, democracy, its cherished inmate, walks out by the backdoor’. It was a court that fixed the price of sugar, bottled water and even mobile-phone services. They decided privatization issues and mining rights. Unable to oust prime ministers through no-confidence motion, politicos got the job done by the courts.
The courts are guards over the brute power and authority of the guardians (the government). In so doing, the courts are ‘quite untouchable by the legislature or the executive in the performance of its duty’ (Harilal Kania, India’s first chief justice).The Chief Justice of Pakistan alone cannot be the guardian of the Constitution. Unlike Western judges, he does not have lifelong tenure. The bureaucracy, banks and accountability institutions should also preserve their autonomy tooth and nail
It is time we refresh French jurist Jean Bodin’s dictum, Majesta est summa in civas ac subditoes legibusque salute potestas, that is ‘the highest power over citizens and subjects unrestrained by law’.. Bodin explained that power resides with whosoever has ‘power to coerce’ (praetorians included). It does not reside with electorate, parliament, judiciary or even the constitution.
Bodin did not believe in separation of powers. Yet our Constitution is based on separation of powers. Do we want to follow Bodin and repose all powers in a single authority, maybe the judiciary?
Potestas, power in Bodin’s definition, signifies auctoritas, authority, a power based upon positive law, de jure, not merely de facto as potestas is used itn the Roman Lex de Imperio, or in the famous phrase of Justinian’s Institutes in reference to it, omne suum, that is, @populi imperium et potestas’. An alternative meaning is auctoritas,authority, potential, a power de facto instead of de jure, actual might rather than lawful authority. The highest de facto power may be different from the one whose claims are the highest de jure [dummy prime ministers and presidents in some countries]. In Bodin’s view there can be but one sovereign, supreme, single and undivided;. If so, the potestas is the highest in actual might– potentissima; with the highest authority. The sovereign is the person who is obeyed. `But we may obey one armed with the pistol as well as one armed with a warrant” What matter is authority not wisdom!
In the golden words of our Constitution, `sovereignty’ belongs to Allah, Almighty’ but `authority’, subject to divine supervision is to be exercised by elected representatives.
Fortunately, our judiciary is reluctant to become a sovereign authority. That’s why it referred the Army Chief’s extension case to the legislature. Let us recall the observations of Pakistan’s Chief Justice during the course of his opening address for the judicial year 2019-2020.
He ‘warned of the dangers of an accountability process which seemed to place political expediency above the dictates of law. He felt that unless this trend was checked the process of accountability would lose all credibility’. Then, ‘he talked about the marginalisation of political parties and the dangers this may entail for a country based on constitutional democracy’. He abhorred ‘growing censorship of the media and how such practices could become a threat to democracy’. He pointed out that ‘constitutionally guaranteed rights of citizens must never be sacrificed at the altar of short-term gains’. To move forward, the CJP suggested that ‘all stakeholders, politicos, judiciary, military, media, civil society, sit together and resolve the problems which, if left unattended, could lead to disaster’.
Unfortunately, the common man is listless to the tug of war between various stakeholders. Aristotle thinks a citizen indifferent to state affairs is like an animal. It is alarming. French thinker Montesquieu likewise said in the 18th century, ‘The tyranny of a Prince in an oligarchy is not as dangerous to the public welfare as the apathy of a citizen in a democracy.’ A corrupt government is the gift of an indifferent electorate. Unless citizens slumber, no-one can dare make underhand money in any project.
In the Azam Swati case, our Chief Justice succinctly remarked that governments come and go but the state and the people remain. Irked by the Chief Justice’s suo motu notice, the Pakistan Tehrik-e-Insaf government’s information minister asked what use was a government that could not suspend an IGP ( the statement was later retracted).
There is a Latin tag, Quis custodiet ipsos custodies?, who will guard the guards? The phrase epitomises Socrates’ search for guardians who can hold power to account. Power corrupts and absolute power tends to corrupt absolutely. Unelected institutions include the judiciary, the civil service, the police, banking institutions, and public sector undertakings.
The malaise of governmental power manifests itself in fake accounts, billions in benami (nameless) or unclaimed accounts, loans without collateral (bad debts), and politically-influenced appointments.
Theoretically, the people hold ‘power’ to account. But the ‘people’ are an amorphous lot without a legal identity like an institution, except as ‘voters’ during elections.
Could a CJP open a tuition centre during evening hours to teach what ‘power’, ‘government’, ‘state’ or ‘people’ are?
Elected representatives (power) are under the delusion that they are superior to all unelected institutions. But the representatives should exercise their authority under Allah’s authority within the bounds of our Constitution.
The courts are guards over the brute power and authority of the guardians (the government). In so doing, the courts are ‘quite untouchable by the legislature or the executive in the performance of its duty’ (Harilal Kania, India’s first chief justice).The Chief Justice of Pakistan alone cannot be the guardian of the Constitution. Unlike Western judges, he does not have lifelong tenure. The bureaucracy, banks and accountability institutions should also preserve their autonomy tooth and nail.
