DAWN - Cowasjee Corner; 17 January, 1999
Are the courts functioning? - 2
By Ardeshir Cowasjee
'ARE the courts functioning?' was printed on May 17 1998, wherein it was related that at the first War Cabinet meeting held by Churchill after becoming prime minister on May 10 1940, when in Britain bombs were falling on the home front, fires burning, people homeless and hungry, all hell had been let lose and lawlessness was feared, the first question he asked of his men was : "Are the courts functioning?" He was told they were working as they always had. "Then all is well," was his comment.
Some reacted by saying how stupid I was to hope that even a small minority of those who maladminister us and of our judges would even understand what I was trying to convey. How many had heard of Churchill or the havoc caused by the Blitz? How many could have been impressed by the fact that the judiciary was Churchill's first concern? How many realize that in a democracy, or in any country claiming to be democratic, in bad or in good times, the first requirement is to have a functioning, completely independent, capable judiciary.
May be so, but would they be not able to comprehend what followed : "Seven years and three months later, Mohammad Ali Jinnah, when making his first speech to the Constituent Assembly of Pakistan stressed the law and order factor. 'The first observation that I would like to make,' he said, 'is that the first duty of a government is to maintain law and order so that the life, property and religious beliefs of its subjects are fully protected by the State'."
For law and order it is necessary to have a strong judiciary, fully independent, comprising honourable men appointed for their integrity, loyalty and learning, impervious to all pressures from the legislature or the administration.
Most of us who were around at the birth of this country never even dreamt that strife over religious beliefs and ethnicity would cause hundreds, if not thousands, of deaths, that men and children would be gunned down whilst at prayer in our mosques.
The fact remains that the courts (which pass for courts in Pakistan) are not functioning and this has been admitted by none less than Khalid Anwer, more the prime minister's legal adviser than law minister of the country. Defending the constitution of military courts : "He expressed his concern over the fact that for the last three and a half years not a single conviction had been obtained from the courts whilst the rate of crime and terrorism went up manifold in the city [of Karachi] ." None can say that he is not sufficiently qualified to realize that it is the government of which he is a minister that has been responsible for the final throw. What has he or his government done to urge that those of his partymen and leaders responsible for organizing the storming of the Supreme Court on November 28, 1997, for committing the grossest act of terrorism, be duly punished? Should these "terrorists" not be tried by a military court?
Laws are not lacking. There are more laws on the statute book than are needed and their surfeit often causes problems. It is their enforcement that is absent, in particular in this city of Karachi. It is this absence of order and the inability to enforce the law that has forced our citizens to support the proposed bringing in of a complete change in the policing and administrative system.
It is solely the bureaucratic brethren who have solidly opposed the introduction of a new police system. Former members of the police service have supported it. The last bureaucrat to write on the Karachi Metropolitan Police was Abdullah Memon, a former home secretary of Sindh, whose article was printed in this newspaper on January 10. What he wrote makes eminent sense. One cannot revamp rotten foundations, if there is to be a change for the better one must begin from the bottom: destroy and build anew.
Jamil Yusuf, the caring chief of the CPLC, who has been unduly attacked in the press, has agreed to organize a seminar which will be open to all those who care for Karachi. No lunch will be served, so let's see how many turn up and speak in support of their convictions.
Mr Memon, though writing on the police, cited the example of the Karachi Building Control Authority : "As long as the officers of this agency were willing to resist the successive ministers of housing and chief ministers they were unable to indulge in major malpractices," Despite the exertions of SHEHRI, coupled with my efforts, the illegal highrises and other buildings mushrooming in the city could not be halted or even restrained.
But let me assure Mr Memon that I have gone to the High and Supreme Courts many times and opposing me far too often have been a corrupt chief minister, an equally or more corrupt minister of housing, a non-descript chief secretary, an acquiescing or corrupt housing secretary/KDA chief/KBCA chief controller, corrupt legal advisers of these two latter bodies, and a team of high-powered and highly paid lawyers representing the builders. On the rare occasion that I had the good fortune to have a case heard by independent-minded judges with a feeling for the environment, judges conscious and aware of the nuances and dimensions of public interest litigation, with right and the law on my side, I was given relief. However rich and corrupt the builders were, they lost. Sadly for Karachi and for us all, this is a matter of the past.
The KBCA Act of 1979 provides for the formation of an 'Oversee Committee' to oversee the functioning of the KBCA. When Farooq Leghari dismissed Benazir in 1996, the Sindh caretaker minister of housing, Maqbool Rahimtoola, was persuaded by the people to constitute this committee. The committee met on the first Tuesday of each month throughout the caretakers' three- month stint. It continued to meet when the elected government took over in February 1997, despite a corrupt chief minister and perhaps an even more corrupt minister of housing. Through the efforts of the committee, the working of the KBCA was somewhat streamlined and controlled.
The committee was constituted "until further orders" and was obviously effective, because when Mahmood Ahmad Khan took over as housing secretary in 1988, come July of that year and with the connivance of chief minister Jatoi and housing minister Waseem Akhtar it was denotified and replaced by a headless-footless body of sorts. Luckily at that time we had an efficient honest chief secretary, Zubair Kidwai, who with the help of the previous chief secretary, Saeed Mehdi (now in the PM's secretariat), the denotification was cancelled and the original committee reconstituted. Though now we are fortunate enough to have no minister, we have a housing secretary who too seems inclined to denotify once again.
But, though felicitously we have the absence of a political government, things continue to go awry. The builders of Karachi manage to get one-sided stay orders from the superior courts which prohibit the authorities from taking action whilst they continue to build ("at their risk and cost") in indecent, dangerous haste, and sell. Some builders have even managed to have consent orders changed without notice being given to the public interest petitioners. One builder has succeeded in obtaining a court order allowing him to block a public thoroughfare, and restraining the municipality from taking any action.
Twelve developers have in the last couple of months grabbed land totalling some 120 acres in one district, that of Malir. The DC says that although the illegal allotments have been cancelled he is helpless, as he is restrained by court orders which permit the developers to sell and to take money in advance.
On the other hand, SHEHRI has been to the courts and managed to get demolition orders for 28 properties in the vicinity of Mr Jinnah's Mazar. But, when certain politically-connected builders approached the governor, the demolition orders were suspended.Mr Memon, I am of the firm conviction that in any organization just one honest headman, or one honest chief adjudicator, or one honest top administrator can be of inestimable help to the citizens. One does not have to find a hundred. Take New York City. Not long ago it was crime-ridden and its police department renowned for its corruption. The present mayor of NYC, Mario Giuliani, despite his political ambitions has cleaned up the police force, which is now held in high respect in the city, and in the space of one year the crime rate has been halved.