The provincial government has decided to go to Supreme Court against Peshawar High Court’s judgment on the BRT. The court has directed the Federal Investigation Agency to probe the project. The bench, headed by Chief Justice Waqar Ahmad Seth was irked by a number of bloomers: (a) “Visionless” concentration of Asian Development Bank (ADB) loans in just one project without an in-depth feasibility study. (b) Cost increase from Rs49.453 billion in 2017 to Rs66.437 billion in 2018, of which Rs53.320 was take in the form of a loan from the ADB. (c) The “per kilometer cost of the BRT being exorbitantly high Rs2.427 billion. (d) Over-paid non-managerial staff. (e) Provision of expensive vehicles to secretary transport, director general of the Peshawar Development Authority (PDA) and commissioner Peshawar by consulting firm, Calsons and Maqbool, backlisted by the Punjab government, yet taken on board for the BRT in Peshawar. (e) Nexus between Pervez Khattak, the incumbent defense minister, the Director General, PDA, Azam Khan, principal secretary to the prime minister.
Our courts are submerged in plethora of cases with a political tinge. This trend is fatal for democracy. Let us not forget what Justice Muneer said shortly before pronouncing his verdict on Dosso case: ‘when politics enters the portals of Justice, democracy, its cherished inmate, walks out by the backdoor’. It was a court that fixed price of sugar, bottled water and even mobile-phone service. They decided privatization issue and mining rights. Unable to oust prime minister through no-confidence, politicos got the job done by courts.
It is time we refresh French jurist Jean Bodin’s dictum, majesta est summa in civas ac subditoes legibusque salute potestas, that is ‘highest power over citizens and subjects unrestrained by law’(Jo.Bodini Andegavensis, De Republica Libri Sex.BkI, ch.I, p.78 (Lyon and Paris, 1686).. Bodin explained power resides with whosoever has ‘power to coerce’ (praetorians included). It does not reside with electorate, parliament, judiciary or even constitution.
Bodin did not believe in separation of powers. Yet, our Constitution is based on separation of powers. Do we want to follow Bodin and repose all powers in a single authority, maybe judiciary?
Potestas, power in Bodin’s definition signifies auctoritas, authority, a power based upon positive law, de jure not merely de facto as potestas is used itn the Roman Lex de Imperio, or in the famous phrase of the Justinian’s Institutesin reference to it, omne suum, i.e., populi imperium et potestas’. An alternative meaning is auctoritas,authority, potential, a power de facto instead of de jure, actual might rather than lawful authority. The highest de factor power may be different from the one whose claims are the highest de jure [dummy prime ministers and presidents in some countries]. In Bodin’s view there can be but one sovereign, supreme, single and undivided;. If so, the potestas is the highest in actual might_ potentissima; with the highest authority. The sovereign is the person who is obeyed. `But we may obey one armed with the pistol as well as one armed with a warrant” (C. H. McIlwain, Economica,No. 18 (Nov., 1926), pp. 253). What matter is authority not wisdom!
In golden word of our Constitution, `sovereignty’ belongs to Allah, Almighty’ but `authority’, subject to divine supervision is to be exercised by elected representative.
Fortunately, our judiciary is reluctant to become sovereign authority. That’s why it referred army chief’s extension case to legislature. Let us recall observations of Pakistan’s Chief Justice during the course of his opening address for the judicial year 2019-2020.
He `warned of the dangers of an accountability process which seemed to place political expediency above the dictates of law. He felt that unless this trend was checked the process of accountability would lose all credibility’. Then, `he talked about the marginalisation of political parties and the dangers this may entail for a country based on constitutional democracy’. He abhorred `growing censorship of the media and how such practices could become a threat to democracy’. He pointed out that `constitutionally guaranteed rights of citizens must never be sacrificed at the altar of short-term gains’. To move forward, the CJP suggested that `all stakeholders, politicos, judiciary, military, media, civil society, sit together and resolve the problems which, if left unattended, could lead to disaster’.
Unfortunately, the common man is listless to the tug of war between various stakeholders. Aristotle thinks a citizen indifferent to state affairs is like an animal. It is alarming. French thinker, Montesquieu, likewise said in the 18th century `the tyranny of a Prince in an oligarchy is not as dangerous to the public welfare as the apathy of a citizen in a democracy.’ A corrupt government is a gift of an indifferent electorate. Unless citizens slumber, no-one can dare make underhand money in any project.
In the Azam Swati case, our chief justice succinctly remarked that governments come and go but the state and the people remain. Irked by the chief justice’s suo moto notice, the Pakistan Tehrik-e-Insaf government’s information minister said what use was a government that could not suspend an IGP (later retracted or modified).
There is a Latin quip quis custodiet ipsos custodies?, who will guard the guardians? The phrase epitomises Socrates’ search for guardians who can hold power to account. Power corrupts and absolute power tends to corrupt absolutely. On-elected institutions include judiciary, civil service, police, banking institutions, and public sector undertakings.
The malaise of governmental power manifests itself in fake accounts, billions in benami (nameless) or unclaimed accounts, loans without collateral (bad debts), and politically-influenced appointments.
Theoretically, the people hold ‘power’ to account. But the ‘people’ are an amorphous lot without a legal identity like an institution, except as ‘voter’ during elections.
Could a CJP open a tuition centre during evening hours to teach what ‘power’, ‘government’, ‘state’ or ‘people’ are?
Accountability of elites and mafias: William A. Welsh says, `The rise of democracy has signaled the decline of elites’ Leaders and Elites, p.1) But, a bitter lesson of history is that demokratia (power of the people) had always been an ideal. History reminds no system, not even ochlocracy (mobocracy) could ever bulldoze governing elites. Delhi Sultanate, the Moghul, and the Englishman ruled through hand-picked elites. The `equal citizen’ as enshrined in golden words of our constitution remained a myth. Even American democracy is run by a handful of specialised people. The majority of the population is a silent spectator, a `bewildered herd’ (Chomsky).
Because of their influence, many political philosophers, including Plato, Aristotle and Tacitus studied nature of societies and the elites that they popped up. Many modern thinkers like Moska, Michel, Marx, Pareto and C Wright Mill, also tried to make head or tail of the elites.
Demokratia (power of the people) could never equalise citizens. However, all democracies envisioned `opportunities for political participation to larger proportions of the population’, and across-the-board accountability. Democracy is a progressive effort to equalise citizens before law, rather than legalising elites and mafias. The dilly-dallying in passing an across-the-board accountability law is not understood. The law should provide for accountability (under Law of Tort) for negligence or neglect by professionals (judges, lawyers, teachers, media persons, and their ilk).
Granting exemptions to certain elites amounts to converting them into sacrosanct mafias. Let there be a single omnipotent body to try all individuals and elites alike.
A peep through hlidskjalf (telescope): If god Odin peeps through his hlidskjalf to have a panoramic glance at Pakistan’s society (its ordinary and influential people and lackadaisical institutions, at dagger’s drawn), what would he notice? Inertia, incompetence, and siege mentality, all around! What solution for this psychopathology? Change of attitudes and a cooperative relationship between individuals and organisations. Not viewing civilians as bloody ones and Khakis as dunces. But how to revamp attitudes? Draw psychological profiles of individuals and organisations. Are they `normal’? ‘Rueful child visible to naked eyes in `Pakistan founding party wala’ and `Naya Pakistan wala` chiefs.
At least the selection and training institutions should review efficacy of their Thematic Apperception Tests. This test claims to decipher underlying motives, concerns, and their inner window on social world. Why scoundrels at large like `sab she pehley Pakistan’ wala remained undetected. He hid in washroom to avoid (d)ragging (read Musharraf’s auto-biography). Try to detect flaws in attitudes like `halo effect’, `projection’, `blame shifting’, `victim blaming’, `bullying’ and` transference’. May apply even Rorschach Ink Blot Test, Children’s Apperception Test and other tests in store.
Unless siege mentality is cured we would continue to witness `defence mechanism’ attitudes (fearful court judgments, discriminatory education and healthcare, and stratified shelter and housing). In short, fossilization of mafias (scuttling participatory democracy) in all realms of life.
Conclusion: Elected representatives (power) are under the delusion that they are superior to all unelected institutions. But the representatives should exercise their authority under Allah’s
Authority within bounds of our constitution.
The courts are guards over brute power and authority of the guardians (government). In so doing the courts are ‘quite untouchable by the legislature or the executive in the performance of its duty’ (Harilal Kania, India’s first chief justice).The chief justice of Pakistan alone cannot be the guardsman of the constitution. Unlike Western judges, he does not have lifelong tenure. The bureaucracy, banks and accountability institutions should also preserve their autonomy tooth and nail.
