Building a judicial legacy of challenge to privilege and power

 

Every chief justice of Pakistan has the opportunity to choose issues for engagement that will define the tenor of the Supreme Court with him as the pater familias. Some have chosen more wisely than others. Chief Justice Bandial’s commencement of the stewardship of the Supreme Court of Pakistan has been greeted by two momentous judgments, one authored by the outgoing Chief Justice of Pakistan Gulzar Ahmed on his last day in office and the other by Chief Justice Athar Minallah of the Islamabad High Court on the first full day of the Bandial Court.

These judgments present firm judicial ground on which to build a legacy of challenge to privilege and power that permeate the structure of our state and society. With a rare temperament, much suited to the healing of wounds and bridging of chasms, Chief Justice Bandial is the jurist to take up the challenge.

The judgment by Chief Justice Minallah, sitting with Justice Mohsin Akhtar Kayani, in ‘Noman Ahmed v Capital Development Authority’ has declared forcible land acquisition at below market value by the Federal Government Employees Housing Authority, a body functioning under federal law, for the purpose of providing plots to the chosen few – federal government employees in general regardless of any distinguishing merit and certain ‘specified’ others – to be an act of elite capture and usurpation of public wealth. Chief Justice Minallah notes that plots allotted against payment of five million rupees or so in the various specified sectors of Islamabad often have a market value of fifty million that could have been realised by the state had the plots been offered for sale through open auction. Instead, the beneficiaries of the allotted plots are provided the opportunity to pocket the difference between the allotment price and the market value.

The state and the people at large stand deprived of up to three hundred billion rupees per sector on account of allotments made in Islamabad. This is public deprivation and private gain, under cover of misconstrued legality, that has gone on for years. In reading rational public interest into the coercive acquisition of land allowed by the Federal Government Employees Housing Authority Act, 2020 and the Land Acquisition Act, 1894 the Islamabad High Court has called out all acquirers of fortune through land allotments.

The fact that the beneficiaries of this largesse include judges at all levels, including the Supreme Court, has embedded in the judgment a plea for introspection and transcendence. Chief Justice Minallah states the matter simply: judges of the Supreme Court or the Islamabad High Court are not employees of the federal government and their inclusion in the cast of beneficiaries as a special ‘specified group’ for the provision of subsidised plots is unjustified and unlawful. Provision of such plots is not a part of the privileges and compensation prescribed by the terms of appointment of judges of the superior courts. Even federal government employees, in general, have no right to be allotted residential plots at a pittance compared to market value. Such largesse is not a term of their conditions of service.

The fact that the logic of this judgment cascades beyond allotments to civilians is lost on no one. In stating what once stated appears blindingly obvious, Chief Justice Minallah has sought to reclaim the title of the people of Pakistan to their land and to the just proceeds of its sale. The matter will, soon enough, move to the Supreme Court. Its fate will hinge on the composition of the bench to which it is assigned by the honourable chief justice.

The judgment in ‘MQM v Pakistan and Others’ by the chief justice of Pakistan, as he then was, Gulzar Ahmed, with Justices Ijaz ul Ahsan and Mazhar Alam Miankhel on the bench, has tilted against the mighty currents that have blown consistently against the devolution of political, executive and financial power from the federal government to the provincial governments and from the provincial governments to local governments, as envisaged by the 18th Amendment of 2010. Article 140A of the constitution was introduced in its current form by the 18th Amendment and mandates the establishment of local governments as a third tier of government with ‘political, administrative and financial responsibility and authority.’ The clear intent of Article 140A is to allow the people’s voice to be heard and acted upon in matters that have the most immediate impact on their lives.

Successive provincial governments led by different political parties across the country have, since the 18th Amendment, sponsored provincial legislation that has purported to set up local governments while denuding them of any real power by vesting financial and executive muscle in the development authorities that are directly controlled by the chief ministers. The Karachi and Lahore development authorities along with a cast of building control, sewage and waste management bodies under the control of the provincial governments have left little to do for the elected local governments, particularly in the urban centres. Even the pretence at local governance has been done away with by each incoming provincial government suspending the local governments elected during the tenure of a previous provincial government.

Building on its 2015 judgment in ‘LDA v Imrana Tiwana’ (in which the present writer presented the case for local government empowerment on behalf of various civil society organisations) the Supreme Court judgment in ‘MQM v Pakistan’ has declared unconstitutional the vesting of core municipal functions, such as land-use planning, in the various development authorities with the power to override the elected local governments. The judgment has also directed the division of funds among the local governments through the implementation of the Provincial Finance Commission Award.

The judgment in ‘MQM v Pakistan’ can instigate a revolution at the democratic grassroots. Which is precisely why it will be resisted. After years of suspension, local government elections are now due. The provincial governments, particularly the ones in Punjab and Khyber Pakhtunkhwa, appear set to drag their administrative feet. The local governments elected this year will, in all likelihood, generate the electoral tailwind for the federal and provincial elections due next year. The Election Commission of Pakistan will, inevitably, need a firm guiding nudge from the Supreme Court for local government elections to be held, with or without electronic voting machines, and for the constitutional mandate of Article 140A to be realised.

While juristic battles over plots and elections rage on before the Bandial Court, old wounds carried by men and women who have so far not expressed the rage within will also present themselves. Let us consider one that continues to fester. The other day a group of former factory workers walked in. They were permanently laid off work during the height of the pandemic in April 2020. A few weeks later they were offered re-employment as daily wage workers with no pensionary benefits. Some had worked at the same factory for twenty years. They refused to accept their permanent termination and re-employment on the terms offered and commenced legal action.

The law that governs industrial relations requires an aggrieved worker to issue a ‘grievance notice’ to the employer before the initiation of litigation. A judgment of the Supreme Court of Pakistan rendered in 1980 interpreted the language of the relevant law with literal constriction to hold that the grievance notice required to be issued by the worker had to be issued by the worker themselves and not by a lawyer on their behalf. When reminded during arguments that most workers were illiterate and action through legal counsel as attorney was an inherent right recognised since time immemorial, the court held that the plea of illiteracy was of no avail and the framers of the law had intended to discourage legal argumentation on behalf of the workers through the engagement of lawyers.

Each of the former factory workers before me had issued grievance notices through good-hearted, young lawyers who had turned up to help. This help might now doom their legal resistance. The Supreme Court of Pakistan has held that legal action by workers based on a legally infirm grievance notice must fail, regardless of the merits of their case. As the pandemic recedes and the unemployed emerge as human detritus, the Bandial Court will have the opportunity to examine afresh the rights of aggrieved workers. Pensionary benefits are yet another battlefield, with at least one judgment of the Supreme Court describing pensions as a mere matter of internal management to be sorted out by the employer. Other judgments have held pensions to be an accrued proprietary right.

Class and inequality have left inconsistent imprints on the body of the law that regulates the rights of some of the most vulnerable in society. These must be excised. May the future legacy of the Bandial Court be as graceful as its incumbent.

The writer is an advocate of the Supreme Court of Pakistan. He tweets @salmanAraja and can be reached at [email protected]

Originally published in The News