Rule of Law and Transparency

RULE OF LAW AND TRANSPARENCY* <!--[if gte mso 10]> RULE OF LAW AND TRANSPARENCY* By Mr. Justice Haziqul Khairi, Former Chief Justice, Federal Shariat Court * Paper read at a seminar of "Transparency International Pakistan" on 16th July, 2009 So much has been said and written on the Rule of Law for the past two years as to what it is. The struggle for Rule of Law launched by the lawyers countrywide has culminated successfully with the restoration of judiciary to its position of November 3, 2007. Each time the rule of law suffers a blow, we are reminded of arbitrary and unlawful actions taken by civil/military bureaucracy or both beginning from the days of Ghulam Muhammad. It is not possible within the available short span of time to address all aspects of rule of law and the events which led to its denial. It was rightly observed by the National Policy Making Commission of Pakistan, of which the writer of this article till lately, was one of its members, that no progress can be achieved unless there is economic progress which in turn demands good governance. But good governance envisages that the three branches of Government namely the legislature, executive and judiciary function within their own areas as set out in our Constitution. In this article I will attempt to touch upon those aspects of rule of law, which have gone unattended or deserve the attention of our learned judges, law makers, jurists and lawyers, electronic and print media and public at large. We are unmindful of two institutions of great significance: one is the Federal Shariat Court established under Chapter 3.A of the Constitution of the Islamic Republic of Pakistan and the other, the institution of Mohtasib (Ombudsman) at Federal and Provincial level in Sindh, Punjab and Baluchistan. The former is a court of special jurisdiction, which besides being an appellate Court, in Hudood Cases, was entrusted the task to declare if any law or provision of law is repugnant to the Holy Quran and Sunnah of the Holy Prophet (P.B.U.H). The declaration of direction given by the Federal Shariat Court shall be binding on all, unless set aside or modified by the Supreme Court Shariat Appellate Bench. Both these institutions have significant roles to play in furtherance of Rule of Law and good governance but have been overlooked or undermined. Is it an irony that the Federal Shariat Court which deals with Shariat petitions and Hudood appeals, does not deserve as much independence and regard as other superior Courts of the country. It is pertinent to note that its Judges take oath `to discharge their duties according to law i.e. Quran and Sunnah' as against oath administered to Judge of other superior courts `to preserve, protect and defend the Constitution' yet the treatment melted out to them under the Constitution is below the dignity of their office and is rather derogatory. To illustrate this position, under Article 203C of the Constitution of the Islamic Republic of Pakistan, 1973, the Judges of the Federal Shariat Court, shall be appointed by the President of Pakistan, who may by order in writing (a) Modify the term of appointment of a Judge (b) assign to a Judge any other office and (c) require a Judge to perform such other functions as the President may deem fit and pass such other order as he may consider appropriate. Is it possible for a Judge of Federal Shariat Court to work under these conditions independently and fearlessly when the sword of Damocles was hanging over his head? The Chief Justice of Federal Shariat Court unlike those occupying similar positions in the Supreme Court and High Courts remains a silent spectator to a game of musical chairs in the appointment of Judges in his Court. Under Article 200 of the Constitution, the President may only transfer a Judge of a High Court to another High Court with his consent and after consultation with the Chief Justice of Pakistan and the Chief Justices of both the High Courts but the Chief Justice of Federal Shariat Court has no say in the matter and he is obliged to accept whosoever (including a High Court Judge) is appointed under Article 203C to Federal Shariat Court whether the transferee Judge is fit for the Court or not. What may further be added here, Is that the Constitution does not provide any qualification for an `Aalim Judge' and it is left open to the Executive to appoint whosoever in its sole discretion is an Aalim. It is pertinent to note that since the establishment of the Federal Shariat Court, there has not been even a single case of conviction under Hadd for want of credible evidence as required under Islam. The Court is thus left to proceed against an accused under Tazir for which requisite knowledge of Major Acts namely Pakistan Penal Code, the Code of Criminal Procedure and Qanun-e-Shahadat is essential. Our Ulema by and large have no sufficient knowledge or understanding of these laws. Similarly in order to ascertain whether any law or provision is repugnant to Quran and Sunnah, it is incumbent that they should have at least workable understanding of legal terminology, modern jurisdiction and interpretation of statutes. Failure to set out necessary qualifications will lead to maladministration and corrupt practices. We are also unmindful of the leading role which may be played by Mohtasib (Ombudsman) both at Federal and Provincial level in dealing with administrative justice and matters connected with corruption malpractices and civil liberties. If any citizen is aggrieved by a public functionary, he may apply directly to him. No Court-fee or charges are payable by him. Known as `poor man's Court', this system has been functioning in more than 105 countries of the world and commemorated its 200th anniversary recently. The Ombudsman in Pakistan deals with maladministration in Government Ministry, Division, Department, Commission established by the Government but would not include the Supreme Court, the Supreme Judicial Council, the Federal Shariat Court or a High Court. The law also excludes from its jurisdiction sub judice cases, foreign affairs matters relating to defence and service, so also grievance of a person against the agency where he is working. Maladministration at the Federal level has been defined to include the following among others: (i) A decision, process, recommendation, Act of omission or commission which:-- (a) Is contrary to law, rules or regulations or is a departure from established practice or procedure, unless it is bona fide and for valid reasons; or (b) Is perverse, arbitrary or unreasonable, unjust, biased, oppressive, or discriminatory; or (c) Is based on irrelevant grounds; or (d) Involves the exercise of powers or the failure or refusal to do so, for corrupt or improper motives, such as, bribery, jobbery, favourtism, nepotism and administrative excesses; and (ii) Neglect, inattention, delay, incompetence, inefficiency and ineptitude, in the administration or discharge of duties and responsibilities. Similar provisions are found in the Establishment of the Office of Ombudsman for the Provinces of Sindh, Punjab and Balochistan and their jurisdiction is identical to the Federal Ombudsman. The modern Ombudsman owes its origin to Sweden where it has been functioning most successfully and is considered as `Role Model' for other Ombudsman. He is appointed by the Parliament with the consensus of all the political parties and is answerable to the Parliament alone. It is stated that about 50% cases filed before the parliamentary Ombudsman in Sweden, relate to corruption and malpractices in judiciary, police forces, prison and probation services arid social services which have been effectively dealt with by him. He may carry out inspection and inquiries without notice in suo motu cases. The decisions and directions given by him is open to public. There is no appeal against his decision. When the first parliamentary Ombudsman was re-elected in Sweden there was a serious debate in the Parliament as he had neither any law degree nor any legal training. According to Bengt Wieslandar, in his book "The parliamentary Ombudsman in Sweden": "in practice it will be difficult to conceive of any one but a professionally trained lawyer who would be able to make assessment of multiplicity of legal issues which arises in the exercise of office". The position in Pakistan is somewhat different. The President appoints the Federal Ombudsman and the Governor the provincial Ombudsman. No qualification for appointment of Ombudsman is required both at Federal and Provincial level. Unlike Sweden it is not inconceivable that anyone other than a professionally trained lawyer maybe entrusted to deal with administrative justice. The Agency (Government Department) may make a representation to the President in case of Federal subject and the Governor in case of a provincial matter, who may set aside his decision. The writer of this article painfully recalls that when he was Ombudsman Sindh, he took suo motu action against the Directorate of Education as hundreds of non-registered private schools were running in the province illegally and arbitrarily charging fees in contravention of the West Pakistan Educational Ordinance 1952, which required that the school fees shall be fixed by the Provincial Government. In exercise of powers as Ombudsman I required the Secretary Education as well as the Director of Education, to take penal action against those schools who had failed to get their schools registered up to 31-12-1991. It may be noted that before the deadline, the Governor repealed the old law and replaced it with Sindh Private Educational Institutions (Regulation and Control) Ordinance 2001, whereunder the Government of Sindh surrendered its right to fix fees for private schools functioning in the province. A more painful and unbelievable experience was, when I had constituted a Commission comprising two senior advisers to monitor illegal detention in Sindh to protect the life and liberty of citizens and empowered them to enter into any police station or other premises, under the control of police at any time without notice and to report to me if any citizen was arrested and detained, save in accordance with law. This was done in the best interest of justice and rule of law. A number of persons were recovered by the Members of the Commission from different places in Sindh which exposed the highhandedness and atrocities committed by the police on the citizens of Pakistan. However, it was shocking for me that the then I.G. Police as aggrieved party filed a representation before the then Governor and obtained ad interim stay against the said order of Ombudsman. I believe the matter is still pending before the Governor. However the ends of justice will be met only when every order passed by the President or Governor setting aside the decision of Ombudsman shall be subject to scrutiny by the Supreme Court of Pakistan. It may be emphasized here that the President or Governor while dealing with representations against the decisions of Federal and Provincial Ombudsmen takes advice from those who may belong to civil bureaucracy or Military hierarchy or politicians who may have their own vested interests. In the end, the superior courts should own, strengthen and protect the institution of Ombudsman, the poor man's court. With their blessings, the Ombudsman will not only share much of their burden but will also provide speedy and effective justice to the poor man.