According to documentary evidence, Chief Justice Justice Nasim Hasan Shah applied for a 1000 sq yard plot in Karachi from the then Chief Minister of Sindh, Syed Ghaus Ali Shah, on 17th December, 1986. In his application Justice Shah wrote: “You are aware that the Supreme Court goes to Karachi for its Circuit Sittings several times in a year. I am therefore desirous of having my own house there so that I might live in my own place during the Sittings of the Court at Karachi as also during my private visits there. I would therefore feel obliged if you could kindly allot a suitable plot of land in my favour for this purpose of at least 1000 yards, out of the Judges Quota.”
Accordingly, on 20th December, Mr Ghaus Ali Shah was pleased to sanction a 600 sq yard plot in Gullistan-e-Johar, KDA Scheme 36, Karachi, to Justice Shah at “a reserved price of Rs 250 per sq yard, in relaxation of rules under Clause 15 of the Sind Disposal of Plots Ordinance 1980”. The total price of the plot (Rs 150,000.00) was to be paid in four installments of Rs 37500.00 each.
Justice Shah submitted an affidavit confirming that “Neither I nor my wife nor any dependents own or owned, at the time of application, any residential plot/house/flat in Karachi or in any other District/Town of the Province of Sind”.
Under clause 7 of the relevant law, “no person shall be eligible to apply for a residential plot under section 5, if he or any of his dependents owns a residential plot, flat or house in any District Headquarter town in Pakistan”.
Since Justice Shah must have owned a plot or house of his own elsewhere in the country, Chief Minister Ghaus Ali Shah therefore found it “expedient” to “relax” the rules in Justice Shah’s case under Clause 15 of the Ordinance.
In the event, Justice Shah did not build a house in Karachi on this plot for his own use as he had claimed he would in his application. Instead, after having cleared his installments, he sold the plot for the princely sum of Rs 525,000/ on 20th August 1992 to a certain Mrs Mariam Qadir.
Legal experts, however, say that neither Justice Nasim Hasan Shah nor former CM Ghaus Ali Shah have breached the law. The law allows chief ministers and prime ministers an undefined degree of “discretion” in such matters, we are informed.
If this is so, we wonder what laws other chief ministers and prime ministers have broken by doling out plots, “in relaxation of the rules”, to hundreds of bureaucrats, judges, army officers, politicians, journalists and other professionals, in similar extenuating and “expedient” circumstances. Most of these plots were, needless to say, given out of the CM’s or PM’s “discretionary quotas”.
Nevertheless, Justice Abdul Majid Tiwana of the Lahore High Court has taken “suo moto” notice of the sordid “politics of plots”. The good judge has demanded details of such transactions since 1985. The judge says that “the court would treat all PMs and CMs at par. None will be able to escape accountability for his or her illegal acts”.
More ominously, Justice Tiwana is threatening to examine the accounts of the Bailtul Maal which has been exploited by politicians to shower favours on party favourites. He also intends to scrutinize details of the billions of rupees in bank loans “written off” at the behest of unscrupulous politicians. Justice Tiwana says he wants “to complete judicial investigation in these matters as soon as possible so that an impression is not created that the court is trying to impede the election process”.
No one can deny that this is all for a good cause. It is indeed about time that some sort of serious accountability took place. Our rulers have been recklessly squandering national resources as though these belonged to them as fiefdom rights. But a number of issues need to be raised if such accountability is to be credible. Also, we would require assurances that in no way will this process derail the general elections scheduled for next October.
As far as the question of “plots” is concerned, it is actually a fairly straightforward matter. Either the chief ministers and prime ministers involved were within their legal “discretionary” rights in or they were not. It is therefore up to the LHC to determine the question of what constitutes “discretion”. Once that is done, wholesale decisions can be enforced.
But it appears that Justice Tiwana intends to examine the bonafides of each allotment separately. If so, then he must be planning to spend the rest of his tenure perusing thousands of such cases. Clearly, that is not on. Is he then going to condone some groups of allottees (like his fellow judges) and focus only on certain others? If so, he should be reminded that the public certainly doesn’t think that judges are above the pale of the law. Is he going to penalize some former CMs and PMs while sparing others? If so, the public simply won’t stand for it. Is he going to target only politicians with a view to excluding them from the electoral process while sidetracking the cases of his fellow state functionaries who should be fired from service if they have misrepresented the facts? If so, he should think again.
The matter of the “written-off loans” and disbursements from the Bailtul Maal and other financial institutions is also likely to come a cropper if an improper or discriminate strategy is followed by the courts. Presumably, every CM and PM was advised by the Law Ministry before patronage was extended. Is the good judge now going to examine the merits of the arguments noted in every file explaining the economic justification for writing off a given loan? Or is he going to concentrate on a few big fish and allow thousands of others who may be equally culpable to go scot free?
The fact of the matter is that thousands of politicians, bureaucrats, judges, mullahs, journalists — in short, every section of the ruling and propertied classes — have absconded with the loot on an unprecedented scale. None of these scoundrels must be allowed to get away with their plunder. In pursuance of the public’s demand, we would like to take a leaf from Nawaz Sharif’s book and recommended a simple way to recover our national wealth.
From 1985 to 1988, Mr Sharif dished out crores of rupees to cronies from his CM’s “discretionary” fund. Under law, however, he was not allowed to do this: the maximum limit of his “discretionary” fund was Rs 200,000/ per year. So Mr Sharif came up with a novel solution. Just before the 1988 elections, he passed an act of parliament in the Punjab Assembly which made his “indiscretions” since 1985 retroactively legal. The new law absolved him of the illegalities he had committed in the use of the discretionary fund since 1985.
That is exactly what PM Moeen Qureshi should do, except that he should do it the other way round. The caretaker government should pass an Ordinance making all “discretionary” grants of land and plots by all CMs and PMs since 1985 illegal, except those for which some concrete justifications can be laid down in the Ordinance.
Once such an Ordinance is promulgated, Justice Tiwana’s headaches will be over. The judge can take a quick look and declare a majority of grants illegal. The state would then be entitled to recover the plots. Where such plots have already been sold off, the state can determine their market value at the time of the sale and recover the amount due from the original beneficiaries of the plots. Where the beneficiaries have already built houses on these plots, the state can threaten to auction the houses if the outstanding dues are not cleared. At any rate, a good lawyer should be able to draft an Ordinance which resolves all such procedural details fairly.
The same sort of strategy should be followed in the matter of “written-off” or “outstanding” loans from DFIs. Surely, if there’s a will to enforce accountability, a way can easily be found. And if some future government should have the audacity to refuse to extend the Ordinances or drag its feet over making them Acts of Parliament, it will have to face the wrath of the people and the press.
While we are on the subject of accountability, we might also ask why the Election Commission has not insisted that every electoral candidate should furnish a detailed and audited statement of his or her wealth, including that of their immediate dependents. Given the overemployment in the Central Board of Revenue, such statements can be verified in a matter of days. Apart from the threat of disqualification, this measure will surely unearth many rascals who have escaped the tax net thus far. We might also suggest that the services of an international firm of auditors be hired to help the CBR thoroughly scrutinize the income-tax returns of every electoral candidate.
Enough is enough, we say. We demand that Ordinances be passed to help government recover the nation’s wealth from the crooks who’ve milked the country dry. Or, failing that, perhaps Justice Abdul Majid Tiwana can take a leaf from Justice Nasim Hasan’s “historic” judgement last May and redefine the meaning of the term “discretionary powers”.