In this age of populism and self-righteousness, some of the jurisprudence being produced by the Islamabad High Court is a breath of fresh air.
The Malik Bashir Ahmed case lays bare the warped relationship between the citizen and the state, and the odious role of our power elites in mediating that relationship. It deals with the issue of acquisition of plots from the poor and their grant to the entitled. Amid the deafening noise of lofty moral rhetoric, let’s not expect to hear much about it in the media.
The judgment in the Malik Bashir Ahmed case came out last year and has now been upheld by a divisional bench of the IHC. In this case, Justice Athar Minallah of the IHC had declared illegal the acquisition of land in Sectors F-14 and F-15 by the Federal Government Employees Housing Foundation. The ruling explained that “the beneficiaries are serving and retired officers and employees of the federal ministries, divisions, attached departments and their subordinate offices” and “judges of the superior courts ie the Hon’ble Supreme Court, all high courts…”
The exposition in the ruling of how judges became beneficiaries of FHEHF plots makes for painful reading. Owners of land in G-13 challenged its acquisition in Writ Petition No 338/1999. The high court “besides upholding the acquisition proceedings, also prescribed the criteria for allotment of plots to the judges of the Superior Courts”. Contempt Petition 1-W of 2000 was filed to seek enforcement of the order. The FFGHF claimed that plots in G-13 already stood exhausted. But the learned judge of Lahore High Court wouldn’t have any of that.
The IHC judgment notes that, “the learned single judge in chambers was pleased to approve allotment of plots in sector G/13 to selected judges, two senior lawyers namely late Sharif-ud-Din Pirzada and Aziz A Munshi besides former Chief of Navel (sic) Staff namely Admiral (r) Fasih Bukhari”. But goes on to hold that, “the state has no commitment to give a plot in a non-transparent manner to the (sic) judges, journalists, lawyers or any other beneficiary of the foundation.” In holding so, it relies on Article 173 of the constitution.
Article 173(1) states that, “the executive authority of the federation and of a province shall extend, subject to any act of the appropriate legislature, to the grant, sale, disposition or mortgage of any property vested in, and to the purchase or acquisition of property on behalf of, the federal government…”. Article 173(5) states explicitly that, “transfer of land by the federal government or a provincial government shall be regulated by law”. The IHC has held that even the PM couldn’t approve allotment of plots without being authorised by law.
The IHC ruled on two issues and flagged one for our conscience. It has essentially held that forced acquisition of land from ordinary citizens for grant of plots at subsidised rates to privileged elites (ie bureaucrats, judges, lawyers, journalists) doesn’t constitute public purpose (under Article 24 of the constitution). And, further, that sans a law made by the legislature, the executive has no inherent power to come up with schemes to grant state land or plots (fungible assets) or land forcibly acquired from citizens to entitled elites.
And then it flagged the issue of conflict of interest to prick the conscience of all of us who belong to entitled elites by observing that everyone responsible for preventing this highway robbery has a stake in it.
The IHC judgment highlights the issue of entitlement of judges to perks such as subsidised plots. Before ruling on a matter of such consequence, it would surely have perused through the presidential order regulating leave, privileges and pension of judges to ensure that such order issued under Article 205 of the constitution doesn’t entitle judges to the privilege of being allotted plots. And if the IHC is right, what is the legal basis for grant of plots to judges and guardians of the constitution and the law accepting such largess?
In an article published in Dawn around this time last year, Irfan Husain narrated how he wrote in the 1990s about a chief justice asking the chief minister of Sindh for grant of a plot to build a house, which was “duly granted and quickly sold”. What followed were contempt notices, court and chamber hearings and while the matter was settled without Mr Husain going to prison, it turned out that the learned judge was peeved at Mr Husain’s account that the plot was ‘flogged overnight’ when it had actually been sold at least a month after its allotment.
Often in the midst of tensions between the government and judiciary, lists of which judges have been allotted plots, and how many, make it to the media. This happened after the restoration of the judiciary. Again, after Panama-I, the news that one of the honourable judges (who didn’t support the immediate disqualification of Nawaz Sharif) had been granted a plot in Islamabad did the rounds, with the obvious malicious insinuation. Given that such scandalous rumours are triggered to impugn the integrity of our justice system, shouldn’t the matter be laid to rest?
Our constitutional courts are guardians of rule of law. In exercise of their powers of judicial review, they remind the executive and all of us every day that public officeholders are fiduciaries that hold state assets and largess in trust for all citizens. That the executive can only exercise such powers as granted to it by law and that it is vested with no arbitrary discretion. They sit in judgment over pilferage of funds, abuse of authority and mafias acquiring land and assets from the state at subsidised rates at the expense of citizens.
The apex court has rendered a very consequential judgment over exchange of land by Bahria Town on impermissible terms. It has taken cognizance of use of finite resources of the state, such as water, in exchange for a pittance (that then undermines the collective rights of citizens to water and thus life). It has taken cognizance of salaries, perks and privileges granted impermissibly to civil servants posted in public companies. It has taken cognizance of high salaries being paid to foreign qualified doctors by a publicly funded hospital.
When the SC is taking all this pain to check abuse of authority by the executive in dealing with public assets, can there be anything more damaging for the idea of rule of law and its integrity than an iota of doubt that an upright, independent and activist judiciary might not be practising what it preaches?
Is it not time for the SC to settle the factual and legal issue? If judges are entitled, under Article 205 read with the relevant presidential order (determining judicial perks) or another law, to be granted plots in lieu of their service, everyone must know that they are within their right to accept such grant. If there is no legal entitlement for grant of plots, it is in the public interest (resting on unequivocal faith that those who sit in judgment over others are beyond reproach) for the SC to order that facts regarding grant of plots to judges, or lack thereof, be disclosed.
Dispensing justice is a godly undertaking and responsibility. Judges are human and fallible and can make mistakes. Thus, wrong decisions don’t hurt the justice system since they can be corrected. But any sense that there is one set of principles that applies to those being judged and another to those doing the judging can raise fundamental questions about the fairness of the justice system. Let’s hope the SC takes cognizance of the plots issue at the earliest, and lays it to rest.
The writer is a lawyer based in Islamabad.
Email: sattarpost.harvard.edu