Fraud as legality

By July 2007, General Musharraf had started feeling nervous. He felt he needed to reach out and build a good opinion of himself among those with a voice in society beyond the bubble he had come to inhabit.

Several evenings with small numbers of ‘thought leaders’ were arranged around the country. This writer was invited to one. We were allowed to question the general. On my turn, I asked him about his declared intent to contest the election for the presidency while remaining army chief. I reminded him that doing so would be unconstitutional. The general laughed loudly. ‘I will tell my lawyers to scribble something on a piece of paper which I will sign and it will become law and will allow me to do what I intend to do.’ I persisted, ‘That would destroy the spirit of the constitution.’ The general was not going to back off. He responded, ‘I will do something about the spirit too.’

Months later, the general’s lawyers had scribbled for him the Proclamation of Emergency Order of 3 November, 2007. A month earlier, the same lawyers had presented him with the so-called National Reconciliation Order (NRO). Clothing fraud with the frills of legality did not start with General Musharraf. Our history, going back to governor-general Ghulam Muhammad and field marshal Ayub Khan, is a sad testament to the persistence of fraud strutting around as law. Such fraud clearly did not end with General Musharraf.

The Higher Education Commission (Amendment) Ordinance 2021 signed by the president on March 25, 2021 has done much more than remove the incumbent chairman, Dr Tariq Banuri, with the stroke of a pen fourteen months prior to the expiry of his assured tenure of four years. This ordinance has plumbed new depths in using the illusion of legality to deprive governance of legitimacy. In the process, the very idea of security of tenure has been laid waste. Independence of all regulatory authorities stands mauled. Consider.

The rise of the state as guardian, provider and regulator of large swathes of human existence has given rise to the question of balance between technocratic authority and democratic oversight. It is clear that a vast array of activities carried out by the state require technical expertise that must be allowed independent expression without being subject to the passing political whims of the majority in government. The members of the National Electric Power Regulatory Authority (Nepra), oil and gas as well as electronic media regulators, the governor of the State Bank and the chairman of the National Accountability Bureau (NAB) are key positions of authority that have been created by acts of parliament that assure to persons appointed to these positions a specified tenure. Premature removal is made possible by the statute only on account of established misconduct or physical or mental incapacity. The democratically elected leadership has a role in the making of the appointments and in setting policy objectives for the regulator. Beyond that, the regulators with assured terms in office are expected to act impartially and with technical acumen beyond the reach of political influence.

It is this vital compact between democracy and technical authority that the Higher Education Commission (Amendment) Ordinance of 2021 has ruptured. Dr Banuri, a Harvard PhD in economics and for decades a global leader in university teaching, research and activism for sustainable development, was appointed chairman in May 2018 for a term of four years in accordance with the provisions of the Higher Education Commission Ordinance, 2002. His appointment was made by the then elected prime minister on the basis of recommendations made by a high-powered search committee headed by the venerable Syed Babar Ali, founder of the Lahore University of Management Sciences.

Once in office, Dr Banuri quickly took to establishing a system of assessment and accountability of those provided state funds for research. This included, according to Dr Banuri, funds in the billions being funneled to organisations with which a former chairman of the Higher Education Commission is associated. Dr Banuri rejected the ‘request’ made by the current prime minister’s office in writing to exempt this gentlemen’s projects from the normal process of assessment. The gravy train had hit a roadblock. It was Henry II who had wondered out aloud in exasperation, ‘Will no one rid me of this meddlesome priest?’ Archbishop Thomas Beckett’s murder by the king’s hangers-on had followed swiftly. The king, of course, was not to be blamed. The year was 1170. These days daggers are not essential. Legal instruments can perform similar functions.

Neither Dr Banuri’s conduct in office nor his health provided any ground for premature removal. In any case, this was not the route taken. The government has instead amended the Higher Education Commission Ordinance of 2002 through the presidential ordinance of 2021, mentioned above, to abridge the chairman’s assured term of four years to two years and applied the shortened term to Dr Banuri with immediate effect. As a result, he has been declared to have served the two-year term specified by the Ordinance of 2021 and, therefore, to have ceased to hold the office of chairman.

The stratagem employed to remove Dr Banuri can be used with similar effect with respect to all assured terms in office, including the assured terms of four and three years for the chairman National Accountability Bureau and the governor State Bank, respectively. Notice has thus been served by the government to all serving supposedly secure terms that their existence in office is only as good as a presidential scribble. With the cabaret at the cabinet and a civil service in fearful flux, the statutory authorities have also been shown their place. Security of tenure shimmers as a mirage over quicksand.

The constitution allows for legislation through a presidential ordinance, issued on the advice of the prime minister, when immediate recourse to parliament is not possible. An ordinance has a lifespan of one hundred and twenty days that may be extended by only one similar term through a resolution passed by either the National Assembly or the Senate. It can be disapproved and repealed earlier through a resolution passed by either house of parliament. Upon its demise any law amended by it stands restored to its original form. There is a tradition of judicial non-interference with presidential ordinances on the ground of fraudulent intent. This is, by no means, an inviolable tradition. In its judgment in the NRO Case of 2009 the Supreme Court has clearly pointed to the possibility of a fraudulent ordinance being struck down.

Judicial remedies apart, the fraud at the Higher Education Commission asks questions of the political leadership on both sides of the aisle and of society at large. ‘Do we have the ability to stand for a valued principle without conflating the principle with the outcomes and personalities impacted by the denial of that principle on a particular occasion?’ The answer sadly appears to be that for far too many a principle is a dispensable luxury to be abandoned in subduing an undesirable presence. The legislative and executive powers available to a government with a parliamentary majority are vast. Governance that inspires trust in the legitimacy of the use of power resides not in using the power of the state with vengeance and menace. It resides in restraint and in upholding the moral core that must nourish the legal superstructure.

In an open letter to Education Minister Shafqat Mehmood, Syed Babar Ali has spoken, at age ninety-five, for Pakistan and for the ages in bemoaning what has happened at the Higher Education Commission. Perhaps Dr Atta-ur-Rehman, newly inducted into the board of the Higher Education Commission, will also consider and then re-consider what has happened. Destroying security of tenure through blunt ordinances will, without a doubt, turn away the best and the brightest from seeking to serve the state with dignity. Contrition remains a noble human attribute.

The writer is an advocate of the Supreme Court of Pakistan.

Email: salmanr2002@hotmail. com

Twitter: @salmanAraja