Keep your books open
THE registrar of the Supreme Court of Pakistan has flatly refused to appear before the Public Accounts Committee (PAC) and also to provide details of the expenditures charged on the public fund by the Supreme Court of Pakistan.
To counter the PAC summons, the registrar has said that his non-appearance has been decided in various full court meetings as the PAC is not competent to scrutinise the accounts of the Supreme Court under the law.
The registrar maintains that his appearance before the committee and accounting for the expenditure would be against the independence of the judiciary.
In addition, a pre-audit system in association with the office of the auditor general has been put in place and all disbursements from the budget of the Supreme Court are audited before and after disbursement
Accountability is much more a moral and ethical issue than a legal issue. In my opinion there is nothing wrong in having these accounts scrutinised by the PAC because the expenditures charged upon the public fund known as the Federal Consolidated Fund are open for discussion in parliament under Article 82 of the constitution.
The decision(s) taken in full-court meetings are not judicial but administrative in nature and they cannot override the constitution and law. The scheme of the constitution unequivocally and unambiguously provides that parliament being the mother institution cannot be curtailed even by judgments of the superior courts and can, in fact, undo judgments by way of legislation.
A parliamentary committee comprising elected representatives and working under the Rules of Procedure and Conduct of Business in the National Assembly cannot be termed as an executive branch of the government.
The constitution prohibits parliamentary debate on the demeanor of any judge of the superior court with respect to the discharge of his duties performed on the judicial side. This constitutional cover is applied — but there is an exception in the case of the judgments of the superior courts.
All judgments of the superior courts become public property after they are announced and can be discussed, scrutinised and criticised in a venerable manner by the public at large.
In these circumstances putting administrative endeavours of judges like monetary sanctions for payments and procurements pertaining to the purchase of books, equipment, transport, stationery, payment of medical bills, etc, under constitutional prohibition would be unqualified and illogical.
The ownership of the Supreme Court lies with the ‘political sovereign’ of the state, that is the Pakistani public. The judges of the superior courts are also public functionaries. Like all other public functionaries they credit their expenses to the public exchequer, which gets filled up by the taxes and revenues paid by the citizens of Pakistan. The government being the custodian of the public exchequer allocates grants comprising millions of rupees to the Supreme Court in annual budgets.
In the last budget the Supreme Court was allocated Rs1.038 billion. Under Article 19-A of the constitution it is the fundamental right of the Pakistani public to know how and where these grants have been spent. The Supreme Court has itself declared that this article empowers the citizens of Pakistan by making access to information a justiciable right rather than largesse bestowed by the state at whim. The court further said that all state functionaries have to understand that in a very real sense, they are employed in the service of the people of Pakistan and are paid for by them.
An in-house pre-audit system in association with the office of the auditor general would not be sufficient to provide transparent and comprehensive information to the public at large, especially in peculiar circumstances where a reference has been sent to the Supreme Judicial Council (SJC) to challenge the appointment of the current auditor general. Besides, there are allegations of financial misappropriations, misconduct, abuse of authority and abuse of his office. The SJC is headed by the chief justice of Pakistan and the registrar is secretary of the council.
Despite one’s faith in across-the-board accountability and the fact that no one is above the law, the idea of calling a judge for questioning before the PAC, in case of any alleged misappropriation, is for the time being far-fetched. This is so especially when the PAC cannot take coercive action against any public functionary and can only make recommendations for necessary action under the law.
Under the constitution and law, I do not see any reason to give exceptional treatment to any public functionary including a judge of the superior court who may be suspected of a misdeed.
I believe in case a judge is suspected or believed to be involved in any illegality he can be severed from the judiciary under Article 209, to ensure that justice remains unsullied, before initiating any legal action against him.
The Supreme Court being the apex court of Pakistan is the flag bearer of accountability in the country but the non-appearance of its registrar before the PAC has led to valid objections and suspicions about the institution which itself is deeply involved in the process of accountability of other institutions at the moment.
If the registrar of the Supreme Court appears before the PAC and gives a detailed account of the expenditures incurred by the SCP it would not only strengthen democratic rule but also establish the respected convention of answerability in the country. Otherwise, there would be no reason to scrutinise other institutions by the Public Accounts Committee.
The writer is lawyer.