Public Accountability in Pakistan

Accountability and Good Governance

Elements of State Authority Required for Good Governance

• Power
– Legislative • Checks and Balances
– Political – Controls
– Executive – Precedents
– Judicial – Practices
– Administrative • Sovereignty
• A system of balance of • Accountability and
power among state Governance
institutions

For establishing Rule of Law

 Public Accountability
• “The sum total of the constitutional, statutory,
administrative and judicial rules and
precedents and established practices by means
of which public officials may be held
accountable for their official actions”
Dr L D White

• “It’s the formal and specific location of

responsibility” Pfiffner
 Types
• Public accountability is established through
controls;

– Internal Controls

– External Controls
 Internal (Administrative Controls)
• Administrative Due Process-Rules, SoPs, Routines
• Hierarchical control structures
• ACRs/PERs
• Fiscal/Budgetary Control- financial powers
• Professional/work ethics- Professional honesty,
integrity, self-restraint
• Administrative Inspections
• Administrative leadership
• Declaration of Assets and Liabilities
• Internal Controls System
 External Controls
• Legislative Controls-Parliamentary Supremacy

• Executive Controls
– The political control over public servants exercised by the
political executive which derives its authority from
Parliament
• Judicial Control
– The controls exercised by the courts over the
administrative acts
– It also implies the right of an aggrieved citizen to challenge
the wrongful acts of administrators in a court of law
• Public Control
 Legislative Controls
• The Question Hours • Law Making (enactments,
amendments, annulments)
• Resolutions & Motions
(Calling Attention) • Parliamentary Committees
System
• Debates & Discussions
• Audit Reports and PACs
• Control of Finances-cut
motions
• Control of Public Finances
– Who holds the strings of the purse?
– Public Exchequer’s control
– Tax payers money-allocation, utilization, and
accounting
 Judicial Control
• Article-176; Establishment and Jurisdiction of
Courts
– 195A) Appointment of Judges and Judicial
Commission
• Articles-176, 177
– Constitution and Appointment of SC Judges
• Article-192
– Constitution of HCs
 Judicial Control (SC)
• Article-184. Original Jurisdiction of the SC
1. In any dispute between any two or more Governments.
3. Without prejudice to the provisions of Article 199, the Supreme Court
shall, if it considers that a question of public importance with reference to the
enforcement of any of the Fundamental Rights conferred by Chapter I of Part II
is involved, have the power to make an order of the nature mentioned in the
said Article.
• Article-185. Appellate Jurisdiction of SC
(1) Subject to this Article, the Supreme Court shall have jurisdiction to hear and
determine appeals from judgments, decrees, final orders or sentences of a High
Court.
• Article-186. Advisory Jurisdiction.
– (1) If, at any time, the President considers that it is desirable to obtain
the opinion of the Supreme Court on any question of law, he may
refer the question to the Supreme Court for consideration.
• Article-188. Review of Judgments or Orders by
the Supreme Court.−
– The Supreme Court shall have power, subject to the
provisions of any Act of Parliament and of any rules made
by the Supreme Court, to review any judgment
pronounced or any order made by it.
• 190. Action in aid of Supreme Court.
– All executive and judicial authorities through out Pakistan
shall act in aid of the Supreme Court.
 Judicial Control-Remedies
• Courts provide Remedies to the aggrieved against unlawful acts of
public officials.
• HCs have Writ Jurisdiction

• Remedies
– Writ of Habeas Corpus. -‫پروانہ حاضری ملزم‬
– writ requiring a person under arrest to be brought before a judge or into
court, especially to secure the person's release unless lawful grounds are
shown for their detention.

– Writ of Mandamus. It is a command requiring lower courts/government to

perform particular duty or action
– Writ of Prohibition: It is a command requiring lower courts/government not
to perform particular duty or action which is unlawful/illegal
– Writ of Certiorari: ‫ مسل طلبی‬a writ or order by which a higher court reviews
a case tried in a lower court.
– Writ of Quo-Warrant: a writ or legal action requiring a person to show by
what warrant an office or franchise is held, claimed, or exercised.
 Public Opinion
• Public opinion
– The collective opinion of the people of a society or
state on an issue or problem.
• Winston Churchill
– "no such thing as public opinion. There is only
published opinion".
• Abraham Lincoln
– "Public opinion in this country is everything".
 Public Control
• Elections
• Referendums
• Pressure Groups and Political Action
• Strikes and Protests
• Citizens Advisory Committees
• Public Opinion & Media-opinion polls
 Judicial Activism
• Black's Law Dictionary defines judicial activism as a
"philosophy of judicial decision-making whereby judges
allow their personal views about public policy, among
other factors, to guide their decisions.”
• the process of judicial review i.e. a constitutional power
vested with the superior courts to adjudicate on the
constitutionality of a law, statute, administrative action,
constitutional provision or an amendment.
• courts become activists
• compel the authority to act and direct the government
regarding policies and matters of administration.
 Why?
• The power of judicial review is exercised worldwide
by the superior courts

• a strong legal tool in the hands of the judiciary to

make ineffective all extra-constitutional acts and
policies of the executive and legislative authorities

• Marbury v. Madison (1803)-US Constitutional

History

• Maulvi Tameezuddin Case (1954-55) Constitutional

Coup
 Marbury v. Madison (1803)
• a U.S. Supreme Court case that established the
principle of judicial review in the United States
• Meaning that American courts have the power to
strike down laws, statutes, and some government
actions that contravene the U.S. Constitution.
• it established that the U.S. Constitution is actual
"law", not just a statement of political principles and
ideals.
• It define the boundary between executive and
judicial branches
 Background

• Adams had lost the presidential election of 1800 to

Jefferson
• in March 1801, just two days before his term ended,
Adams appointed several dozen Federalist Party
supporters to judicial positions to frustrate Jefferson
• The U.S. Senate quickly confirmed Adams's appointments
• Jefferson, two days later, instructed his new Secretary of
State, James Madison, not to deliver a few of the
commissions.
• William Marbury was one of them
– he was a Maryland businessman who had been a strong
supporter of Adams
 The Case
• Marbury filed a lawsuit in the Supreme Court
asking the Court to issue a writ of
mandamus forcing Madison to deliver his
commission.
• In an opinion written by Chief Justice John
Marshall, the Court held firstly that Madison's
refusal to deliver Marbury's commission was illegal
– the Court did not order Madison to comply
• that American courts have the power to invalidate
laws that they find to violate the Constitution
 Judicial Activism in Pakistan
• Doctrine of Necessity
• The term gained attention since 2007 especially
due to the active role of the then C.J Iftikhar
Chaudhary
• Lawyers’ movement
• The Panama Leaks Case and the Role of CJ Saqib
Nisar
• Defining Court’s jurisdiction under Article
184(3)
 MAULVI TAMEEZUDDIN CASE (1954-55)

• On 21 September 1954, the Constituent Assembly amended

the Government of India Act 1935 which had barred the
Governor-General from acting except on the advice of his
ministers.

• the Governor General Ghulam Muhammad dissolved the

Constituent Assembly of Pakistan.

• Maulvi Tamizuddin Khan, the President of the Constituent

Assembly, challenged the Governor General's actions in
the Sindh High Court
– Sindh H.C declared it ultra vires.
– The federal government appealed in the Federal Court.
• In 1955, the Federal Court led by Chief
Justice Muhammad Munir ruled in support of the
Governor General.
• The court suspended the decision of the High Court
and held the Governor General, and not the
Constituent Assembly, to be the sovereign authority.
• A dissenting opinion was written by Justice Alvin
Robert Cornelius
• The verdict dealt a blow to the notion
of parliamentary supremacy in Pakistan.
• Since then, the balance of power and accountability
have not been established
 Corruption
• ADB defines corruption as the abuse of public or
private office for personal gain.
• World Bank Defi
• UN Defi
• TI Def
• E&D Rule of GoP
• “Corruption is the intentional non-compliance with
the arm’s-length principle aimed at deriving some
advantage for oneself or for related individuals from
this behavior.”
 Corruption
• There are many criminal and unethical acts that can constitute
corruption.
• Corruption can be defined and categorized in different ways.
• The most common types or categories of corruption are;
– supply versus demand corruption,
– grand versus petty corruption,
– conventional versus unconventional corruption, and
– public versus private corruption
– Systemic Corruption
• “Supply-side corruption” is used to describe the act of offering an
illicit payment or undue advantage,
• “demand-side corruption” relates to the acceptance or solicitation
of such a payment or advantage.
– “Active” and “passive” corruption are terms that have been used
synonymously with supply and demand corruption.
• “Conventional corruption” occurs when
government officials, whether higher or lower
ranking, illegitimately receive or accumulate
an undue advantage for their own personal
use, disregarding public interest.
• “Unconventional corruption” exists where a
public or government official acts without
consideration for the public’s interest, the goal
being to attain a specific and personal gain.
Grand Corruption-Mega Corruption
• “Political corruption” is considered a type of grand
corruption due to its seriousness and the
highranking level of public officials involved. It exists
where politicians and government agents who are
entrusted with enforcing laws are themselves
corrupt: it occurs at the top levels of government.
• Another type of grand corruption is “State capture,”
which is defined as a company or organization that
shapes and influences legislation or government
policies in an entire sector
 Systemic Corruption
• “Systemic corruption” exists where corruption
is pervasive or entrenched in a society.

• In other words, it exists where it is routine in

dealings between the government and private
individuals or businesses.
 Causes of Corruption
• Historical Causes
• Poverty and underdevelopment
• Anarchy or lawlessness or bad governance
• Weak administrative controls and ethics
• Systemic widespread acceptance of corrupt
practices in our society
• Judicial inaction, delays and wrong decisions
Recommendation to Eradicate Corruption
• Appropriate separation of powers between the legislative,
executive and judicial branches ensure effective check and
balance and hence accountable public administration.
Discuss, the statement in the light of historic Watergate
Scandal, which forced Nixon to resign as head of public
bureaucracy. CSS-2017
• (b) Judicial Activism