Conceding or contesting?
Most civil litigation is frivolous and avoidable, as it is caused mainly because of the executive abuse. Instead of conceding, the colonial bureaucracy is required to contest every wrong decision. Accountability through the judiciary is almost impossible, in the not-too-recent past, senior officers who were able and honest provided relief to the public through on-the-spot executive review. In the interim 1972 constitution, the formation of administrative courts was legislated (Article 212), unfortunately in the permanent 1973 version, the judiciary was empowered to take on this role. Executive authority has to be monitored, controlled and held accountable otherwise it becomes a menace as it has become in our times. Public has narrow choices, for immediate relief only gratification works, otherwise litigation consumes generations. Common Law has failed badly in providing accountability or convicting the corrupt; all it can do is provide relief by granting bails. In the murder trial of Zulfiqar Ali Bhutto (ZAB), the Lahore High Court (LHC) granted him bail while the murder case continued. He was then arrested under the martial law and kept in illegal confinement till his judicial murder in April 1979.
A R Cornelius was perhaps the most outstanding Chief Justice of Pakistan (CJP). He wrote a dissenting note in the famous Maulvi Tamizuddin case that derailed the democratic order. He was not a law graduate, rose from the administrative cadre and fully understood the executive abuse of the colonial set-up that bestowed unbridled powers to the bureaucracy and the law enforcement agencies. In the early sixties, he headed the Commission for Administrative Reforms, which made far reaching recommendations which deserve to be revisited. He was a key player in formulating the 1972 constitution—that is why he recommended executive accountability through the executive. I strongly suggest in order to reduce the workload of the court system, all cases involving dispute with the executive should be separated and decided in administrative courts, where contest of the incontestable can be easily conceded based on data and documents.
My father, the soldier of Quaid, believed in fighting back against bureaucratic high handedness. In his younger years he would even physically fight, but in his later sojourn he opted for litigation. When I took over from where he had left in September 1991, there were about twenty pending court cases. More than half we settled out of court. When I thought that the ordeal was over and I could finally relax, we received a notice from the High Court for a hearing. It was regarding some property tax issue. It was a writ petition he had filed about two decades ago which finally came up for hearing after he had passed away. Luckily his lawyer and friend Malik Akbar Advocate was still alive. He briefed me about the case but advised me to let it go uncontested. The property tax on our two kanal family single storey home was twice as much as the double storey one next door. My father wrote to the Director to know the basis of the assessment that allowed such discrepancies. In reply, he was informed that it was the discretion of the department and they were under no obligation to reveal the basis. As he was not satisfied with the reply he received, he decided to file a writ petition which was being heard after two decades. As his aging lawyer refused to fight, I decided to do it on my own. With my elder sister who has a law degree, we appeared in the court for the hearing. I went up to the rostrum and explained the case with a final plea that the assessee has a right to know the basis of the assessment. The judge was very supportive of our point of view and instructed the department if they wanted to concede or contest; they sought time which was granted. On the next hearing, the department conceded. Now it has been established through this writ petition that the Property Tax Department has to reveal the basis of the assessment. I am sure my old man must be very happy, though it took twenty years to be heard to finally get relief.
My experience is that once a file is opened, the superior judiciary does provide relief but not in one lifetime. The executive invariably hides behind the paperwork that they control and even manipulate. Then they continue to contest their wrong decisions through their favourite legal counsels. The Law Department has strict rules about the appointment of legal counsels by the departments which are not followed. The public is made to suffer till they surrender to the wishes of the department, as it is less costly to grease their palm than to pay high attorney fees. There is one stark difference I see, with the passing away of my father’s generation; now no one is willing to fight the evil system, it seems almost everyone has surrendered to the corrupt staff or their weak officers. The public is left totally at the mercy of the vultures.
During the Governorship of Lt Gen (R) Ghulam Jilani Khan, a proposal was prepared for the formation of Citizen’s Desk in most important government departments where people could go for on-the-spot relief. Instead, the office of the Ombudsman was created, which is again very time consuming and allows the bureaucracy to slip away. I had an interesting experience with the Federal Ombudsman in 1992. My container which was booked for the Lahore Dry Port was stopped illegally at Karachi for inspection on the orders of the Assistant Collector Customs (AC) who considered himself to be the king of the port. On my refusal, the container was held by the Karachi Port Trust (KPT) for a few days before being released. When I cleared the goods at Lahore there was a charge of Rs 5040/= as demurrage charges by KPT, which I refused to pay. The local customs staff were sympathetic as they knew I could not take on the entire evil empire and advised me to clear the container as otherwise additional charges would incur. I took their advice and later filed a complaint with the Ombudsman for the refund of Rs 5040/=. The hearing officer ruled in my favour, but KPT refused to refund the money as the Customs Department was at fault. The Chief Ombudsman called to convince me to let go as the amount had been received by a third department which was not at fault. I refused and insisted that the AC should be asked to pay, as he had issued illegal orders. The Ombudsman seemed helpless, finally one of my uncles advised me to put in a request for a face-to-face hearing of all the parties. The move was effective, KPT refunded the amount as it would have cost them more to send a person for a hearing to Lahore. Two departments were made to concede as I was willing to fight on. The Ombudsman, a senior bureaucrat by the name of Vakil Ahmed Khan who became my friend, asked for a letter of commendation for his efforts; I told him that I deserve one.
There is a big mess out there which no one is willing or able to correct. Finally, the Prime Minister (PM) has realised that the entire system is non-functional. While everyone is talking about the lack of performance of the two-year-old regime, no one seems to be focusing on the evil empire that rules over us and then contests its foul play at public expense. The NCOC (National Command Operation Centre), under the technical guidance of Dr Faisal Sultan and the leadership of Asad Umar, has been able to overcome the pandemic through effective SOPs (Standard Operating Procedures). Such modern methods of management have to be introduced at all levels to take away the colonial discretion under which the administrative machinery continues to function after over seven decades of independence. They must learn to concede, not contest their wrongdoings.