Francis Bacon said: “knowledge is power”.
Right now, a lot of Pakistan’s governance problems stem directly from the fact that after the long military dictatorship, an another un-elected institution has gotten an upper hand in state affairs. We have been reading Chief justice of Pakistan’s opinion about extent of parliament’s supramacy. This new sort of Azad Adaliya is continuously undermining democracy and elected legislative body’s role and it recently set a dangerous precedent in already fragile democratic environment, by disqualifying the elected Prime Minister of the nation, through controversial conviction.
Lamentably, our opposition parties and irresponsible media for their petty self-interests have once again permitted an unrepresentative institution to have power over people’s representative institution. And now, Supreme court has assumed new power, again at the expense of parliament, Chief Justice of Pakistan Iftikhar Chaudhry and his ideological jusdges are very much convinced that the Court has the power of final judicial review, a legal theory that allows the Court to decide whether parliament legislation is in accordance with constitution and in Pakistan’s case Islam as well, thereby allowing a few un-elected judges to invalidate legislation by the true representative of people.
Since the inception of Pakistan, our judiciary has played a very important role in protecting the establishment’s supremacy and exploitative system of human oppression, it has repeatedly provided cover of the “Doctrine of necessity” for dictators. The Supreme Court always validated the military takeover and even it granted General Pervaz Musharraf three years or power to amend the Constitution, through executive orders.
Earlier this week the Public Accounts Commission released a very revealing report that accused 15 SC judges received two plots each and the judiciary’s outright response/refusal that PAC not authorized to execute audit of apex judiciary. In other words just like other holy cow institutions judges are not accountable to public scrutiny. So started a new debate on the role and jurisdiction of state institutions. However, superior judiciary has not explained in its response that how the allotment of more than one residential plots is linked to discharge of judicial duty? And are the retired judges also covered under Article 68 and Article 81 of the constitution? The whole nation wants to know.
After including Article 19-A in the Constitution Pakistan has become member of 50 plus countries whose constitution guarantee right to information. That Article says:
“Every citizen shall have the right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law”.
Mr. Saroop Ijaz rightly pointed out in his article Our right to know:
The refusal of the Supreme Court Registrar to render to the Public Accounts Committee any details of the plots ostensibly allotted to the Honourable Judges leaves a distinctive and familiar bad taste in the mouth. The reason put forth by the Registrar is that according to Article 68 of the Constitution, no discussion can take place in parliament regarding the conduct of any judge of the Superior Courts “in discharge of his duties”. The argument is indeed peculiar since I certainly hope that the Registrar is not implying that the land was acquired in discharge of duties. Let us get a few things clear at the outset; firstly, no allegation has been made against any judge or the judiciary. Secondly, even if an extra plot was accepted, it forms no basis of a prima facie misconduct. In this light, the reluctance or the outright denial seems faintly paranoid and defensive, in any event puzzling. I have a feeling that because the Supreme Court thinks that parliament is made up of incompetent crooks, it (the SC) cannot and should not subject itself to scrutiny by them. If that is so, the problem should be obvious: clichés likes “checks and balances”, “who will guard the guards” etc. The SC is empowered to interpret the law and decide what is permissible, yet the refusal comes too close to ambitiously high-minded self-comparisons with two of the four Caliphs. I am against anyone being held to the standards of the pious Caliphs and quite content with imperfect temporal constitutional standards. Yet, to the cynic it may seem as what can be colloquially termed as a “having-it-both-ways” approach.
This is not merely about the assets of judges but about the fundamentally larger question of freedom of information and its nexus with democracy. We live in a society and a system which thrives on restricted, controlled information. Given the general fondness shown by the SC towards Indian precedent, the Supreme Court of India website contains details of the assets of sitting and former judges and their spouses. Not only rendered to parliament, but for everyone to see. Now that is a precedent worthy of emulating. I see no reason why the National Assembly, provincial assemblies and Senate websites should not have detailed assets of all their members.
In India, ‘The Judges Declaration of Assets and Liabilities Bill, 2009’, makes it mandatory for judges of the Supreme Court and the High Courts to declare their assets on a regular basis to their respective Chief Justices and the Indian citizens are able to access details of assets of the judges under the Right to Information Act, 2005.
Former Chief Justice of India J.S. Verma, who was instrumental in getting the 1997 Resolution passed unanimously, publicly opined that the assets of the Supreme Court judges were very much in the public domain ( The Indian Express, 19.01.09).
Indian Lok Sabha Speaker Somnath Chatterjee’s point of view: “Judges of the higher judiciary should also be subjected to accountability on issues like declaration of assets …” and added “he had allowed access to information about MPs’ assets to anyone who sought it.” ( The Indian Express, 22.01.09)
Former Indian Attorney General Soli Sorabjee cryptically stated: “Whether legally bound or not, in the fitness of things, judges should declare their assets.”
(TheTimes of India, 23.01.09)
The right to information has long been recognised as a ‘Fundamental Right’ of a free citizenry. It is from this right that other basic human rights can flow. No state institution that claims to be guard of people’s interests and constitution refuse to be transparent to its people. It is very unfortunate that, despite long years of independence many countries have continued to hold information away from people and even penalise the slightest breach through such insidious laws like ‘Official Secrets Acts’ of colonial vintage. These laws were predicated on the view that the public was the enemy and a subject and had no right to seek nformation or explanation from the overlord state institutions. This thinking has no place or legitimacy in today’s modern democratic global world and since the 1990s over 50 countries have joined in the trend toward greater openness and replaced secrecy with transparency as the fundamental norm defining governance.
So, just like our politicians, our judges, generals and journalists must provide financial watchdog/PAC accurate information about what they get from state’s exchequer and present themselves for accountability and scrutiny. The accurate information will surely empower masses.