DO all rulers wish for absolute power? Most of them probably do. Do they have their wish granted? Not many in this day and age are as lucky as Nawaz Sharif. Lord Acton had famously warned that “power tends to corrupt and absolute power corrupts absolutely”. Richard Fallon, our constitutional law professor at Harvard Law, had concluded at the end of his course that the law’s best bet against abuse of power has been to require it to be widely distributed, regulate discretion of power wielders and subject their decisions to disclosure and scrutiny.
Livid at the whimsical appointments and transfers undertaken by the caretakers in 2013, Khawaja Muhammad Asif, the current defence minister and possibly the sanest voice in PML-N, filed a petition before the Supreme Court. The apex court accepted his petition and undid the caretaker appointments.
But it went on to hold that, “to ensure fundamental rights … a commission headed by and comprising two other competent and independent members having impeccable integrity… is required to be constituted by the federal government through open merit-based process having fixed tenure of four years to ensure appointments in statutory bodies, autonomous bodies, semi-autonomous bodies, regulatory authorities, to ensure the appointment of all government-controlled corporations, autonomous and semi-autonomous bodies etc”.
The court also laid down the terms of reference for the commission. While it is undesirable for courts to legislate under the garb of exercising judicial authority, the PML-N never sought a review of the ‘Kh. Muhammad Asif case’ and insisted that the order would be implemented in letter and spirit. In compliance, on July 22, 2013 it issued a notification constituting the Federal Commission for Selection of Heads of Public Sector Organisations and notified 58 organisations in relation to which the selection commission would make appointments.
As it settled in, along with enjoyment of power came second thoughts. On Jan 13, 2014, the government issued another notification reducing the number of organisations falling within the selection commission’s jurisdiction from 58 to 23. Still unsatisfied, the government through a notification dated March 4, 2014, also excluded two critical corporate sector regulators, the Securities and Exchange Commission and the Competition Commission, from the selection commission’s jurisdiction.
To assume control of the affairs of another key regulator, the Pakistan Medical and Dental Council, the government has just promulgated the PMDC (Amendment) Ordinance, 2014. Given the dismal state of public health in Pakistan the less said about the PMDC’s performance the better. But as a matter of law, regulatory authorities fall within Part II of the Federal Legislative List and within the Council of Common Interests’ jurisdiction, without consulting which any change within PMDC’s structure ought not to have been enforced.
The PPP government had initiated a Safe City Project in Islamabad in 2009. The $124.7 million project awarded to a Chinese company in an unsolicited bid and in breach of PPRA framework was challenged before the Supreme Court. Through its ruling in the ‘Raja Mujahid Muzaffar case’, the court struck down the contract in 2012 and held that, “not only the contract dated 29.12.2009 was entered into in violation of the law in a non-transparent manner but was also at a cost which to say the least is suspicious if not vastly inflated”.
But the PML-N government has revived the Safe City Project and awarded it to the same Chinese company reportedly on the same terms and conditions. Likewise, the Supreme Court had struck down corruption-dripping RPP contracts amidst much fanfare (for which PPP prime ministers are facing accountability courts). It has now been reported that the Rental Power Plants have been revived and rendered kosher by the PML-N government under the cleaner name of Short-Term Independent Power Plants.
During the last two and a half decades umpteen judgements have been rendered to painstakingly separate the judiciary from the executive and explain how such separation is a cardinal feature of our Constitution. The country celebrated the culmination of such process in 1996 with the ‘Al-Jihad Trust Case’ and once again with the restoration of the ‘independent-minded’ judges in 2009. And what do we get in 2014 after all the effort, lecturing and hullabaloo? A serving DMG officer posted as registrar of the Supreme Court.
It doesn’t matter that the officer has a stellar reputation. This isn’t about the individual. It is about the unambiguous principle that the judiciary must be functionally, financially and administratively independent of the executive. And not to protect judges, but citizens who have a fundamental entitlement to have their rights and obligations adjudicated by chambers of justice capable of functioning as neutral arbiters without any interference.
But here we have the Supreme Court and the government joining hands to appoint a serving civil servant, dependent on the executive for his future appointments and promotions, to serve as the key interlocutor between the apex court and the rest of the world (including the government and all other litigants).
The PML-N’s proclivity for absolutism has begun bringing back ugly memories from 1997-99. The selective practice of principles has many names: opportunism, nepotism, cronyism, hypocrisy etc. There are two ways to bridge the gap between law and practice: by conforming practice to law or by amending the law to reflect prevalent practice. If we have an elite consensus against changing our sordid ways, let’s just change the law to avoid its mockery at least. Won’t the honest admission that we are a rotten lot preserve some of our dignity? n
The writer is a lawyer.