Ardeshir Cowasjee

FRIEND Shahid Javed Burki, in his November 29 column on this page, consigned to the institutional graveyard of Pakistan all the great pillars of state other than the military and the press. The judicial and legal systems were amongst the fatal casualties.

We, of course, all know well how the judicial system of this republic has been moribund since 1954 and how, along the way, down all the years since then, it has died more deaths than the proverbial cat. But suddenly, since the installation of Justice Iftikhar Muhammad Chaudhry as Chief Justice of our country the judiciary, at its very head, has shown definite signs of life — a resurrection may be under way, though the body has shown little signs of stirring and is in dire need of revival.

Chief Justice Chaudhry holds close to his heart matters affecting the environment and human rights, and in the interest of both he has taken various suo motu actions of import. Last month, he also did something long overdue, and put into place a workable system of accountability which covers the judges of the Supreme and High Courts.

Justice Chaudhry and his fellow Justices Abdul Hameed Dogar, Shakirullah Jan and Hamid Ali Mirza are now sitting on a Bench hearing a petition (CP26/05) filed by four owners of apartments in the ill-fated Margalla Towers of Islamabad, the sole high-rise building in the capital city to have collapsed into ruins as the October 8 earthquake struck, killing a total of 75 people, of mixed race, gender, age and sex.

On October 19, four owners of flats in the Towers (Saad Mazhar, Humayun Ahmed, Rukhsana Durrani and Farid Madhit) approached the Supreme Court citing as respondents in their petition the Capital Development Authority, CCC Associates, Architects, Engineers and Developers and its managing director Muhammad Ramzan Khokar. They were represented by a team of lawyers, all appearing gratis, pro bono publico, headed by none other than the much maligned Jadoogar of Jeddah, Syed Sharifuddin Pirzada, whose legal prowess and added ability to influence the course of political events and constitutional reparations are legendary. With him are Advocates Hamid Khan, Zahoorul Haq, Malik Muhammad Qayyum, Salman Aslam Butt, and Haji Shakeel Ahmed. Sharifuddin is assisted by Advocates A.K. Halipota and Muhammad Waqar Rana.

The petitioners sought remedial relief from the court to award compensation, interim compensation, and temporary accommodation until matters are sorted out. They sought punitive damages for the loss of life and injuries caused, and most importantly, they prayed “that direction for appointment of a small committee of architects and engineers may kindly be issued to review building laws and make amendments to meet such (a) situation and contingency.”

The honourable judges were swift to act. On October 21 they ordered that the CDA provide temporary housing, of equal status as they were occupying, for the surviving residents who had been left homeless, failing which the CDA pay to them the monthly rent of each residence so that they may make their own arrangements. The CDA was also directed to provide a complete record of the ownership of both plot and building, the approved plan, and complete details of the officers/officials engaged in the approval of the plan, the construction and its supervision and the relevant certifications issued.

Islamabad’s IG Police was also directed to submit a report on the arrest of the persons against whom an FIR had been registered on the day of the earthquake, which he did on October 27. As was to be expected, all but one of the original owners/developers/builders are either dead or have disappeared into thin air. Respondent Khokar and his wife, both British passport holders, had luckily left for London earlier in the year, and there being no formal extradition treaty between Pakistan and the United Kingdom, all that could be done was to alert Interpol and ask that Red Notices be issued against them.

The CDA, quite naturally, was totally uncooperative — unable to trace records and so on, but finally came out with the names of two lesser officials involved in the widespread gross criminal negligence, AD BCS Abdullah Jan and Inspector BCS Noor Mohammad, who have been duly arrested. The main culprits have yet to be netted. But knowing the calibre of our law enforcement agencies and government factotums, it is highly doubtful that the leading criminals in this particular case will be brought to justice. There is but hope for the future, hope that lessons may have been learnt.

On October 28, aware that Margalla Towers had collapsed “due to substandard construction which took place in violation of the Building Codes” the court ordered the chief secretaries of the four provinces to appear and submit their respective building codes, submit a report on buildings in their provinces constructed contrary to the codes, identify the various earthquake zones, adopt measures to make the existing buildings earthquake-proof, and to ultimately reframe the building codes accordingly. Again, the court’s limitations come into play. Building codes may be revised, but who can or will enforce them? Not this government that we now have in place. It can enforce no writ, certainly not in the building and development area where corruption is, if it be possible, even more deeply rooted than in the administration.

The University of Engineering and Technology of Taxila was also directed to inspect the site of the ruins, collect samples and submit a report. This it did last week and the finding, in short, was that the material used in the construction of the Towers was 50 per cent below standard. There is nothing at all surprising in this. It applies to the majority of buildings built in all the cities of Pakistan over at least the past three decades.

But all may not be lost. The final outcome of this case and the judgment handed down by the Chief Justice and his brother judges will apply not only to Islamabad, but to the entire country, and if we are lucky it may warn future builders and developers, and even the officials of the city development authorities that they may not get away with substandard construction materials, willful negligence of codes and regulations, bogus certifications, and other corrupt practices. Sharifuddin is hopeful that there will ultimately be a positive effect, and that builders and authorities in future will think twice before playing with lives by filling their pockets.

One example of case law to support the pleadings comes from the Supreme Court of Canada in the City of Kamloops v. Nielsen (1984) 10 DLR (4th) 641 in which the municipal authority was held jointly liable with the builder and the building owner for failing to take appropriate legal proceedings to enforce a ‘stop work’ order. During construction it had found that the foundations of the building in question were defective. It issued a ‘stop work’ order, the builder and owner ignored it and it was occupied without obtaining the requisite occupancy permit. The house was sold, and three years later the new owner discovered the foundation defects, sued the original owner for fraud and the authority for negligence. The plaintiff was awarded costs for making good the foundations.

As for all those involved in the construction of Margalla Towers who have fled the country, according to Blackstone’s Criminal Practice, 2000, manslaughter by gross negligence is liable to be punished in the same manner as manslaughter. So, on the assumption that the offence with which they have been charged would meet the requirements of a charge under ‘manslaughter by gross negligence’, the collapse of Margalla Towers would constitute an ‘extradition offence’.