ISLAMABAD: Justice Qazi Faez Isa of the Supreme Court on Thursday observed that neither the Constitution nor any law entitled judges or senior members of the armed forces to receive plots or pieces of land.

“It is trite, but needs restating that judges are not empowered to make law; they simply interpret it and if a law offends the Constitution they must strike it down,” observed Justice Isa in his additional note while setting aside the Sept 9, 2018 Islamabad High Court judgement which had scrapped the federal government’s housing scheme in sectors F-14 and F-15 in Islamabad.

While scrapping the scheme, the high court had noted that the beneficiaries of these sectors were serving or retired officers and employees of federal ministries, divisions, attached departments, judges of the Supreme Court, all high courts, Azad Jammu and Kashmir Supreme Court and the Chief Court and Supreme Appellate Court of Gilgit-Baltistan, as well as the Federal Shariat Court.

The Supreme Court verdict announced in the open court on Thursday by a four-judge bench concerns a housing project launched by the Capital Development Authority (CDA) and the Federal Government Employees Housing Foundation on the land acquired from the locals. The bench headed by Justice Mushir Alam held that the land was legally acquired by the foundation.

But Justice Isa in his additional note explained that the Constitution and the law (presidential orders) did not entitle chief justices and judges of the superior courts to receive plots or piece of land. Likewise, he highlighted, the manual of ‘pay, pension’ compiled the presidential orders, rules and notifications regarding the pay, pension and privileges of judges, but the manual also did not contain anything entitling chief justices and judges of the superior courts to plots of land.

“The independence of the judiciary is a necessary concomitant to ensure its respect and credibility in the eyes of the people, but the executive giving plots to judges constitutes a favour,” he said.

Justice Isa observed that the Constitution determined the terms and conditions of service of superior court judges and nothing could be subtracted there from or added thereto, adding that since the stipulated terms and conditions did not entitle judges to receive plots, they were not entitled to receive plots from the foundation or out of any compulsorily acquired land.

Justice Isa explained that no one could be given, nor could they receive, more than a single plot, adding that the foundation, government or any organisation controlled by the government could not provide a second or additional plot. Moreover, he said, without specific legal sanction, no one, including the prime minister, had the discretion to grant land, a house or an apartment to anyone.

Justice Isa explained that different laws governed those employed in the armed forces and these laws also did not provide that they be given residential plots, commercial plots or agricultural land nor permitted them to receive the same.

“Nevertheless, senior members of the armed forces get plots and agricultural lands and continue to be given additional plots and agricultural lands as they rise up the ranks,” he regretted and recalled that in his 655-page book, the brother of Gen Asif Nawaz brought privileged, personal and scholarly insight into the armed forces of Pakistan.

Justice Isa recalled how Gen Ayub Khan was preceded by two British officers as Pakistan’s army chiefs and when Gen Gracey was commanding the Pakistan Army, Gen Ayub Khan approached him with a request for a plot but he was rebuffed by the then army chief; ironically a British officer preserved Pakistan’s land from a son of the soil. The author mentioned the grant of subsidised plots and other benefits and stated that “gradually, the mores of the military changed to make all such ‘sweetheart’ deals acceptable”.

Likewise, Shuja Nawaz in his book under the chapter “United Pakistan: How to Break up a Country” wrote that the practice of multiple plots was to become common, giving rise to a new “Culture of Entitlement” that permeated both the military and civil bureaucracies and that would become embedded in Pakistani society.

Justice Isa observed that both civil service and armed forces personnel were in the service of Pakistan and the Constitution created no distinction between them. “The laws governing civil and armed forces personnel do not entitle them to receive residential plots, commercial plots or agricultural land. If lands are given to only one category like the members of the armed forces and the civilians in the service of Pakistan are disregarded, it constitutes discrimination and offends the fundamental right of equality,” he emphasised.

Justice Isa observed that the amount to be spent in the financial year 2020-21 on pensions was Rs470 billion, of which Rs111bn would be spent on retired civilians and Rs359bn on retired personnel of the armed forces. The annual cost of pension payments is almost equal to the cost of ‘running of civil government’, which is Rs476bn and the people of Pakistan pay these pensions despite having very little themselves.

“In addition to receiving pensions, public lands are taken which is eminently unfair,” Justice Isa regretted, adding that Pakistan was heavily indebted and the people paid astronomical amounts to service the accumulated debt.

“This financial year Rs2 trillion will be paid to service debt; this astronomical amount does not include the repayment of a single dollar, sterling, yen, euro or rupee. And, the government continues to take more loans; piling debt upon debt, and adding billions to debt servicing,” Justice Isa regretted, adding that the elite capture created a “predatory state” in which the division between private and public interests was totally dismantled.

Published in Dawn, October 9th, 2020