Administrative accountability courts must be set up

Despite conscientious efforts by every government, the administrative set up remains sluggish. For the public, it is almost impossible to get relief. In the formative years of Pakistan, senior officers responded to complaints by holding the lower staff accountable but not anymore. While the Armed Forces and Judiciary have their own internal accountability mechanisms, the bureaucracy has been able to hide behind judicial writ petitions and appeals which take decades to conclude. Although on paper several mechanisms exist to address grievances (PM Portal, Ombudsman/Mohatsib, CM Inspections Teams, Open Kutcheries, Information Commissions, Judicial Writ/Appeal/Review/Stay Jurisdiction etc) yet the system remains choked and non-functional.

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Worldwide accountability mechanisms

My uncle and partner has written extensively on this subject. Engr Masood Hasan, the senior most Chemical Engineer (Chem-1) who passed away in June last year has a complete chapter in his autobiography titled: “Accountability of the Executive and Justice with Equity or Istehsan”. According to him, the Muzalim or Complaint Courts were pioneered by the Holy Prophet (PBUH) and were then formalized by Hazrat Ali (RA). In these courts the Khailfa sat on judgement as Chief Executive of the Riasat-e-Madina.

In India, under the Mughals, the accountability of the Executive resided with the Executive. Adal-e-Jahangiri stands out, where quick relief was provided against executive abuse by the Shah-an Shah himself. Napoleon learnt about these courts during his thirteen months stay in Egypt. On his return to France, he set up similar accountability mechanisms called Counseil d’etat (Court of the State). In Sweden and Finland, they are called Supreme Administrative Courts (Justetieo-Ombudsman). Norway, Denmark, New Zealand all have similar accountability mechanisms.

Way forward for Pakistan

In the land of the pure, Article 216 of the 1972 interim constitution stipulated setting up of Administrative Courts or Tribunals with five jurisdictions (1 a,b,c,d,e) that included tax and labour disputes as well. In the original 1973 version a toned-down version was added under Article 212 in which both tax and labour disputes were excluded. After the change of government, the usurper eliminated the entire article in July 1979. Some Administrative Tribunals were set up to address employment issues only but relief to the public was denied as envisioned in the two constitutions framed by genuinely elected representatives of the people. The results have been disastrous. The courts are not geared to handle administrative matters which causes unnecessary delays on one hand and inundates the entire legal process. Then expensive lawyers jump in to further complicate the issue.

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Only if the cases pertaining to executive excesses are separated, the current load of the regular courts can be cut in half. Instead of providing relief by correcting their mistakes the executive invariably defends its position by hiring legal experts at public expenses. It is a perfect case of double whammy, where public has to suffer at both ends. A list of such frivolous litigation can be compiled to reduce the load of courts. As a first step the scope of the PM Portal can be enhanced to act as an Administrative Court to pass direct orders instead of acting as a coordinating unit with the executive. Most complaints finally land up with the persons against whom they have been filed in the first place. The Prime Minster is the Chief Executive of the country, he has to exercise his authority to provide relief to the public. He can only be effective if he can hold the entire set up accountable. The chain of command is very clear in the Armed Forces and Judiciary but confusion prevails in the executive as the accountability is external instead of being internal and on the spot. Also, the institutional encroachments are also encouraged in the present arrangement where the courts can intervene in the executive domain.

To get rid of the usurper’s onslaught on the unanimously agreed constitution, as a first step the original Article 212 of the 1973 version should be immediately restored followed by the setting up of Administrative Courts within the executive domain. Eventually the parliament should debate on incorporating the entire Article 216 of the interim document. Somehow the bureaucracy has always been able to dodge accountability as it can hide behind files and paperwork. The Information Commissions have helped but their scope is limited as they do not have executive authority. Ombudsmen have to rely and depend on the information provided by the departments which is often incomplete or misleading. The Muzalim Courts came from Riasat-e-Madina to fight Zulm ( Abuse ), the two constitutions ( 1972, 1973 ) of the Islamic Republic of Pakistan legislated setting up of such courts, why have they been denied to the people of Pakistan for over four decades to the people of the land of the pure?