The rule of law is supposed to diminish arbitrariness in the exercise of powers. It provides that each individual has a right to be dealt with law. But the emergence of state activism has profoundly affected the democracies across the globe and there also occurred a phenomenal increase in the area of state operation. With respect to this view, the grant of discretionary powers to public bodies and officials, which was once believed to be incompatible with the notion of rule of law, became a necessity of time by the product of modern welfare states. However, the exercise of administrative and executive discretion by public functionaries must be regulated so as to protect common man from despotism. It is a generally accepted principle that the exercise of discretionary power by public bodies and officials is subject to the express and implied limitations imposed by law.
The administrative discretion is linked with the rights of the citizens of the state. It cannot be exercised in derogation of the constitutionally guaranteed fundamental rights of citizens. A limit is then placed on that power. From the perspective of a citizen, an exercise of power by any branch of the government which compromises his liberty may be legitimately questioned because the constitution confers this right on the citizens. Where the rule of law exists the government and its functionaries are accountable and due care is exercised to ensure that no organ of that becomes despotic and omnipotent. In developing societies like Pakistan, the derogation of fundamental rights is endemic and the rule of law is often slaughtered at the altar of discretion and personal whims.
Unlawful killings by the police, arbitrary arrests and harassment, a malafide and improper order, acting under dictation, and abdication of authority fall within the purview of definition of abuse of power by public functionaries. An abuse of authority becomes the order of the day in Pakistan. The Supreme Court of Pakistan has termed the ‘absolute’ and ‘unchecked’ exercise of powers by the state functionaries contrary to the fundamental rights guaranteed under the Constitution. The latest strong worded ruling of the Supreme Court in the Khawaja Brothers case has highlighted the gross violation of human rights, freedom and human dignity. The country’s top anti-graft body (NAB) is accused of becoming an instrument of political engineering. Justice Baqbool Baqar has noted that principles of equality, fairness, tolerance, and respect for democratic norms are flouted nepotism with impunity, cronyism, dogmatism, incompetence, deception, false pretense, self- projection, misplaced sense of superiority, different biases and prejudices, and corruption have seeped into our society and have now inundated it. This is not the first time that NAB’s independence and credibility came into question. Since the enactment of National Accountability Ordinance, 1999 and the creation of Accountability Bureau, NAB’s reputation stands thoroughly compromised, and its claims of conducting a robust accountability derive sound hollow. Its arbitrary powers to arrest people on mere complaints and allegations of corruption and financial wrongdoings has only earned public censure and mistrust. It would not be wrong to say that graft charges are used to change and buy the loyalties of politicians. Its capricious exercise of power is reprimanded by the Apex court on various occasions.
The administrative discretion is linked with the rights of the citizens of the state. It cannot be exercised in derogation of the constitutionally guaranteed fundamental rights of citizens
Article 10 (1) of the Constitution of Islamic Republic of Pakistan provides that “No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice”. Recent abduction of Matiullah Jan from the federal capital Islamabad is another example of capricious and arbitrary use of powers by the state authorities.
Public bodies and officials need to understand that an administrative body is under duty to act, justly, fairly, and reasonably and where it acts unreasonably, capriciously or arbitrarily, the courts will interfere with its judgment and their credibility will also come into question. A power conferred by a statute must be exercised on the considerations mentioned in the statute or relevant to the purpose for which it is conferred. If the authority concerned pays attention to, or takes into account, circumstances, events or matter wholly irrelevant or extraneous to those mentioned in the statute, then the administration action would be ultra vires and should be quashed.
Every citizen of Pakistan has an inalienable right to the protection of law under Article 4 of the Constitution. Courts are duty bound to uphold constitutional mandate and keep up the statutory principles of rule of law. When a state functionary acts beyond his power or does a thing which he is not competent to do, the courts must prevent him from acting so as our constitution mandates treatment in accordance with the law.
The writer is a legal practitioner and columnist