An unfortunate trend
Despite the many gains of the movement for supremacy of law, over the past five years, the one elusive goal that we have not been able to accomplish is that of the triumph of the spirit of law over the aura of individual personalities. In fact, a strong argument could be made that over the past half a decade, as Pakistan has embraced judicial power to be the new grundnorm of our society, there has been a corresponding augmentation of judging people according to their perceived personalities, instead of the law. Examples? In the stand-off between Faisal Raza Abidi and the Supreme Court, of course Mr Abidi is wrong. In the contest between the Registrar of the Supreme Court and the Public Accounts Committee, of course the PAC is overstepping its bounds. In the dispute between Malik Riaz and Arsalan Iftikhar, of course the prodigal son is pious.
And in the latest of such personality contests – rather than legal disputes – the illustrious Dr Shoaib Suddle, the Federal Tax Ombudsman (FTO) and a trusted man of the Supreme Court, is pitted against the questionable Mr Akhtar Buland Rana, the President’s choice for Auditor General of Pakistan (AGP). And without knowing the facts of the case, or provisions of the law, a large segment of the society, helped by one bearded holier-than-though journalist, and his friends, have already concluded that Mr Rana is wrong and must be prosecuted.
But, fighting this temptation to judge the issue on the basis of personalities alone, let’s look at the facts of the dispute: some days back, Mr Rana, the AGP, a Constitutional Officer holder (under Article 168 of the Constitution), was served a contempt notice by Dr Suddle, the FTO, a statutory office holder (under the Establishment of the Office of Federal Tax Ombudsman Ordinance, 2000). Reason: An independent audit team of the AGP’s office, owing to no specific direction of the AGP himself, raised an objection in regards to the FTO claiming Rs 200,000 a month in the name of ‘superior judiciary allowance’ (reserved for judges of the honourable Supreme Court). The audit objection contended that since the FTO is not a judge of the superior judiciary, he is not entitled to the additional allowance. And the same objection was raised in regards to this allowance being claimed by the Attorney General and the Law Secretary (both of whom have not contested the objection).
The FTO, in all his might, decided to fight for his Rs 200,000. And in this regard, asked the AGP to appear and explain the objection. Personnel from the AGP’s office appeared before the FTO, but the AGP refrained from appearing personally (apparently, to uphold the integrity of his constitutional post as against the lesser statutory post of the FTO). With egos running wild, the FTO summoned the AGP in person, and issued a contempt of court notice when the AGP refused to do so. As a result, the FTO issued arrest warrants for the AGP (all arising out of the desire of FTO to claim the additional Rs 200,000 a month allowance).
The AGP approached the honourable Islamabad High Court to protest the fact that the FTO had overstepped his bounds and could not issue a contempt notice or arrest warrants since the matter of audit objection was the legitimate domain of the AGP’s office, and did not fall under the purview of the FTO (who, under the statute, only has the power to “rectify any injustice done to a person though maladministration of functionaries administering tax law”). It was also argued that the FTO was being a judge of his own cause, in a matter that concerned Rs 200,000 of payment to him. The IHC did not pay heed to the AGP’s argument, since on the opposite side was Dr Suddle, a darling of the judiciary in the aftermath of the Arsalan Iftikhar commission report. And thus, as the case stands now, the FTO has summoned the AGP, under the threat of arrest, to appear on Wednesday.
The conspiracy theorists say that this case is the consequence of a larger ‘plan’. The AGP, who is not liked by PML-N and the honourable Chief Justice (he had raised objections to the AGP’s appointment last year), is being shown the door. Since the AGP can only be removed per Article 209 (Supreme Judicial Council), it is likely that the FTO is being used as an instrument to convict the AGP for contempt, which shall serve as cause enough to initiate Article 209 proceedings and dismiss Mr Rana.
All this might be true. And the public might even be happier for this removal. But it amounts to nothing more than a case of picking personalities over the law.
Under the law, the FTO has no case. For the FTO to issue contempt proceedings, he would have to first assume jurisdiction of an issue (pertaining to tax law), then pass an order, and only in the defiance of such order (relating to maladministration of tax law), can the FTO issue a contempt notice. This matter relates to the personal (discretionary) benefit, of Rs 200,000, being extended to the FTO, and nothing to do with his responsibilities as Tax Ombudsman. By no stretch of the law or the imagination, can the FTO assume legal jurisdiction of the matter, pass an order, and issue a contempt notice.
On the other hand, the issue of raising an audit objection is the legitimate sphere of the AGP’s office, and the same should be allowed to be done out of respect for the process and purpose of audit. Independent audit, even of the highest of officials (favoured by the court) is just as important to the concept of good governance, as other equivalent maxims such as independence of judiciary. And in an environment where a certain section of our society deems that it is above all notions of financial audit and accountability – e.g., refusal of the Registrar of the honourable Supreme Court to appear before the PAC some months back – the function and sanctity of audit becomes even more of a fundamental nature.
But there is no point in discussing the law. Because the dispute, as it is being played out, is simply being judged on the basis of personalities and not the law. And sadly for the AGP, he is on the losing end of that equation. Pitted against a man who, very recently, through an investigation report, bailed the Supreme Court out of much embarrassment, the AGP has no real chance of getting a dispassionate appraisal (by the court or by the people). And waiting in the wings, with party-hats and pom-poms, is that section of the media who wants to see the AGP dismissed.
Triumph of the Lawyers’ Movement had injected a heightened sense of rule of law in our society. It was believed that justice would be done strictly in accordance within the parameters of the law, irrespective of the personalities involved. While this has been true in convicting prime ministers, and holding other powerful men and women accountable for their actions, the trajectory of law seems to break each time someone favoured by the court is brought within the bounds of law.
And in this way, one cannot help but conclude that even today, in the contest between personalities and the law, (some) personalities continue to prevail.
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]