Wajid Jawad
Apropos my article titled “Time to reflect” regarding awards made by International Centre for Settlement of Disputes (ICSID) in respect of M/s Karkay and M/s Reko Diq against the state of Pakistan carried by Business Recorder on 4th October 2017, it is now reported that ICSID has penalized Pakistan for US$ 160 million and penalty of Rs 59.36 million per month on default as well as the opposing counsel’s fee of $10 million. Additionally, a claim of US$ 11.2 billion is pending before the same forum and most likely this will also be adverse to Pakistan. I had written that “[T]these cases indicate our total incapacity and apathy to governance and lack of knowledge and understanding of our obligations and consequent implications. There seems to be a total failure of government and state institutions in timely redressing the grievances and there we are to face the music. The responsibility is to be shared by the government and our Judicial System and its comprehension to appreciate and deal with such sensitive cases and issues for which Pakistan is now embarrassed internationally and my heart is sinking and bleeding as to how and where from are we going to foot the bill and I shudder to think of the consequences fraught for our poor, ailing and vulnerable economy”.
It was a sigh of great relief for people of Pakistan to see the decision of a 3-member bench of Supreme Court headed by the Chief Justice on 12thFebruary 2018. The court rejected a petition filed by Sheikh Rashid Ahmed. The Sheikh had sought disqualification of Prime Minister Shahid Khaqan Abbasi for alleged corruption in the award of an LNG import contract.
Rejecting the appeal, the Chief Justice said the court did not want to repeat the history of cases of Reko Diq, Karkay as well as Pakistan Steel Mills, adding that the petitioner should know what those decisions cost Pakistan in the eyes of the world.
Can we hold anybody accountable? Farrukh Saleem is an expert on calculating how many schools, colleges and universities could be established and how many children could be educated and how many sick could have been treated for the billions of losses caused by these decisions of the then CJP, Iftikhar Chaudhry, and the judges who concurred with him?
It is worth mentioning here that due to lack of international confidence in our judicial system, the flow of investments to Pakistan is very low except where sovereign guarantees are involved. Our Bilateral Investment Treaties with many countries including the US remained inconclusive for want of inclusion of international arbitration clauses. This is a clause foisted on countries that do not have a judicial system that enjoys international credibility and the other party banks on resolution of disputes through international arbitration. The US Trade Representative office has formulated the Framework for Bilateral Investment Treaties. Some salient points are reproduced below:
The US bilateral investment treaty (BIT) programme helps to protect private investment, to develop market-oriented policies in partner countries, and to promote U.S. exports. Similar practices are followed by most other developed economies.
The BIT programme’s model text and basic aims are:
* To establish clear limits on the expropriation of investments and provide for payment of prompt, adequate, and effective compensation when expropriation takes place.
* To provide for the transferability of investment-related funds into and out of a host country without delay and using a market rate of exchange.
* To restrict the imposition of performance requirements, such as local content targets or export quotas, as a condition for the establishment, acquisition, expansion, management, conduct, or operation of an investment.
* To give covered investors the right to engage the top managerial personnel of their choice, regardless of nationality.
* To give investors from each party the right to submit an investment dispute with the government of the other party to international arbitration. There is no requirement to use that country’s domestic courts.
This writer heard the other day that some International agency is going to hold a training programme for our judiciary on climate change laws. This is very welcome. This writer suggests that such programmes be arranged for Pakistan’s judiciary and civil service officials on a regular basis to build their capacity and keep them abreast with new global developments related to finance, industry, investment and business.
Once a senior official of the World Bank who also had a business background told this writer that if you ran into an official dealing with business issues, you ask him a simple question, “Has there ever been a situation before you when running an industry, it was the 1st of the month and you had to meet a payroll and there was no money in the bank account?. If not then you have no business to deal with such issues”. This is the real dilemma. The institutions dealing with such problems lack empathy and are not interested to know or imagine the possible adverse consequences.
Recently, in a TV programme, a guest who is an expert on international law talked about judicial accountability. She said the world is talking about judicial accountability and in South Asia in particular; parliament has a role in judicial appointments and accountability. She said in India, Sri Lanka and Nepal, judges can be impeached but in Pakistan Supreme Judicial Council is the only body that can hold Judges accountable; adding that the council is somewhat a redundant body. She said there is need to hold discussions on court’s decision on the 18th Amendment in which it is deemed that the court could meet its independence only if its appointments and accountability fall in judiciary’s own control, but the international standards are contrary to that. She cited the examples of Sri Lanka and Nepal where the executive did not approve of judicial verdicts. But it is also very important that it does not become an institution that cannot be held accountable. The then Chief Justice had proclaimed that 2016 would be the year of judicial accountability but the promise ended with a whimper. In fact, he dismissed a petition as being not maintainable in which the prayer was for the Supreme Judicial Council to disclose how many complaints it had received, how many were disposed of as frivolous and how many were still pending.
Eminent lawyer Babar Sattar in his weekly column for a newspaper has written a piece “Judicial imperialism”. This is really a thought-provoking article. The following are some excerpts from his article,
“We are in the age of judicial rule. It started with the restoration of Iftikhar Chaudhry and his projection as the messiah representing the aspirations of the silent majority. (Many of us who lionized former CJ Chaudhry are now ashamed of being unable to see the harm that judicial overreach, driven by a populist rhetoric, is doing to the polity). CJ Chaudhry used suo motu to transgress into the domain of the executive in the name of judicial review. Back then, our present CJP was a staunch critic of the unguided exercise of suo motu.” Further adds, “If at all there existed any limits to the reach and scope of article 184(3), they are now invisible. With some creativity everything can be a matter of public importance related to fundamental rights.”
At a recent seminar presided over by CJP, the chief guest, eminent lawyer Aitzaz Ahsan talked about the movement for restoration of the CJP Chaudhry. He said that there are two extremely negative outcomes of that Tehrik. “Arrogant Judges” and “Militant Lawyers”.
This means that the entire system has been sent topsy-turvy.
This writer once reliably learnt that Supreme Court CJ Afzal Zullah told his fellow judge Rafiq Tarar (who later rose to become President of Pakistan) that judges are descendants of demigods. Unfortunately, this kind of mindset, sickness and arrogance is all pervasive amongst those entrusted with authority or power irrespective of their level and needs to be effectively dealt with.
Constitution of Pakistan provides for trichotomy of functions and powers between institutions of Legislature, Executive and Judiciary. The problem starts with encroachment on other’s territory and this is a malaise facing the nation. Now due to certain populist actions by the institutions which claim to have the right of oversight have caused considerable harassment to the executive.
Take example of actions by State Bank of Pakistan for cleaning up the balance sheets of banks’ long standing infected portfolios in the year 2002 under Circular BPD 29. Supreme Court took a suo motu action, which remained inconclusive, but caused a great psychological setback to the morale, and the spirit of initiative and drive. Such institutions are best left alone as they are autonomous statutory bodies and required to be so as per global best practices and needless to add that the agencies making intervention lack the capacity to handle such issues in this age of specialization. The suits relating to finance and property need to be dispensed with on priority.
Similarly in 1997, the then Supreme Court CJ Sajjad Ali Shah suspended the 13th& 14th amendments to the Constitution of Pakistan to enable President Farooq Leghari to dismiss the then Prime Minister and dissolve the National Assembly to which there was a natural backlash as an institution had used its powers arbitrarily. Similarly, there was a time when officers and personnel of armed forces were instructed that while visiting the urban centers, sensing public resentment due to negative perception on meddling in political affairs they should be in civvies.
To conclude, the scourge of arrogance and the wars of turf among institutions must be addressed in the right spirit. Chairman Senate Raza Rabbani has already put forth a proposal for an inter-institution dialogue to define the functional territories and it must start and be an ongoing process. For accountability to be credible it must be across the board and applicable to all institutions, Accountability should not be limited to financial probity but its ambit must be enlarged to include transgression of power, including judicial, executive and legislative, so that adherence to the principle of trichotomy of powers that underpins our constitutional set-up helps this country grow into a modern democracy.
(The writer is former Chairman, Export Promotion Bureau,
Govt. of Pakistan)
