Constitutional turf-war

Our ever-expanding list of holy cows

We live in a strange time. A moment in history where ‘democratic’ institutions and ‘constitutional’ forces have taken up arms against one another. Some of us are in denial of this battle being waged. Others appease themselves with a claim that these tussles are the birth-pangs of a functioning democracy. But is it possible that behind the veil of these excuses, we are establishing institutional fiefdoms rather than a coherent system of governance? Whenever this constitutional turf-war comes to an end, will the victor – be it the parliament, the executive, the judiciary (or even the army) – be beyond all reproach of law and accountability? In essence, as a result of the battles between our constitutional organs, will the nation have lost the larger war of a functioning democracy?

In the latest skirmish (during a saga that seems unending), the Public Accounts Committee (PAC) released names of bureaucrats, generals, and judges of the apex court (retired and serving) who have been allotted more than one residential plots in Islamabad. In this regard, the PAC asked the Auditor General for an opinion on whether the PAC could look into the matter of allotment of these plots to the judges, and also directed the Defence Secretary to furnish a list of generals who were allotted more than one plots in Islamabad.

As can be expected in Pakistan, the GHQ ignored the request of PAC, despite reminders being sent to them. Well, at least the army is clear in its purpose – it shall not appear before any ‘civilian’ for accountability of its officers. There is no pretence of legality or constitutionalism. The idea is simple: how can these (fake) BA pass civilians hold the ‘national saviours’ accountable for anything!

The SC, however, while achieving the same end as the army, took a more ‘constitutional’ defence. Through a letter written in December 2011 (made public now), pursuant to a meeting of the full court, the Registrar informed the PAC of four principle issues: 1) the Registrar of the apex court shall not appear before the PAC for this would tantamount to an infringement of the autonomy of the court, 2) in light of Article 68 of the Constitution, a discussion about the judges could not take place in the parliament, 3) per Article 81 and 82 of the Constitution, the remuneration and expense relating to judges and officers of the court fall in the Federal Consolidated Fund, and the National Assembly has no oversight role in the matter, and 4) if PAC so desires, it should approach the President regarding the conduct of a judge (per Article 209 of the Constitution, apparently).

These arguments need further analysis, but let’s start with a simple truth: there can be no cavil with the idea that judicial independence is paramount to the functioning and sustainability of a democratic and constitutional order. And ‘independence’, in this regard, does not simply mean independence of decision-making, free from all prejudice… but also includes financial independence in terms of the remunerations of the honourable judges and expenditures of the court. And for this purpose, the Constitution, per Article 81, has wisely placed the “remuneration payable to” and “other expenditure relating to” the honourable judges of the court in the Federal Consolidated Fund.

But does this principle extend to ancillary benefits (say, allotment of more than one residential plots) extended to the judges? Do the “remunerations”, under Article 81, include the allotment of plots? Can the principle of judicial independence be extended to never look into a judge’s personal and financial dealings, regardless of how far removed such dealings are from his/her responsibilities as a judge? Does judicial independence mean that, de facto, upon swearing the judicial oath, the concerned individual falls outside the purview of accountability?

Let’s view Article 68 for a clearer perspective. It mandates that “No discussion shall take place in [the Parliament] with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties.” By including the words “in discharge of his duties” the framers of our constitution have wisely struck a fine balance between judicial independence and accountability of a judge. Till such time that a judge is performing an act in discharge of his judicial responsibilities, the parliament cannot discuss the conduct of the judge, for it might amount to infringement of judicial independence. But any act of a judge, not “in discharge of his duties”, falls outside the purview of Article 68, and can clearly be the subject of discussion in the parliament. Now, if anyone can explain how the allotment of residential plots (more than one) is linked to discharge of judicial duty, I will most eager to understand it.

And what of retired judges? Are they also covered under Article 68 and Article 81 of the constitution? Or have we simply developed a culture in our land that each institution takes care of its own, irrespective of the law or constitutional mandate. This is eerily similar to the stance of the army that resists allowing a retired general (a son of the army) to be accountable before the law. Does the court, the custodian of constitutional rights and responsibilities, also ascribe to ‘we take care of our own’ mantra?

We are standing at the edge of reason, friends. It seems that the ongoing constitutional turf-war between the institutions, is less about the law and more about who can assert ‘supremacy’ over the other. In a nation full of ‘saviours’, institutional supremacy has become the currency of legitimacy. Constitutionalism, principles, law and ethics have taken a backseat in this turf-war. The executive’s non-writing of the letter and the parliament’s proposal of amending the contempt of court law are no different, in principle, to the SC’s threatening to strike down a constitutional amendment dealing with judicial appointment process (Article 175A) or refusal to be accountable to public scrutiny. In all these instances, institutional or individual concerns have overridden national preferences.

Being young gives one the license to be idealistic. So here is my utopian dream: Imagine a country in which every general, every bureaucrat and every judge (yes!) submits himself, in broad daylight, to public scrutiny. Imagine a place, where accountability (of protected institutions) is not hidden behind the smoky doors of Article 209, or behind the fenced walls of a court-martial. Imagine being able to ask every public functionary to account for his professional and personal conduct, without fear of being in contempt or found missing the next day. Wouldn’t that be something!

The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School. He can be reached at: [email protected]