State and Its Officials Have Tortious Liability Towards the Citizens For Violation of Their Rights.
Honorable Justice Athar Minnallah of the Supreme Court has recently released his additional note in 90-day election case. The note is deeply contemplated and based on self-accounting. It has taken into account the chequered history of the dissolution of the National Assembly and the Provincial Assemblies and the aftermath of these dissolution in the light of the Constitutional provisions, showing his utmost dismay on the delay of election across the country.
The Note states that the President, Election Commission as a whole and the concerned governors, all of them have created a constitutional impasse with connivance of the Federal Government. The Constitution does not mandate a care-taker set-up beyond 90 days in any case while the current care-taker government continues far beyond the 90-day mandate which is a blatant violation of the Constitution. The Note declares it violation and subjugation of the Constitution and the rights of the people of Pakistan.
The people of the country are currently being governed by an un-elected government beyond the Constitutional mandate. The right to choose representatives and be governed by the chosen representatives are being violated continuously. The worst aspect of this violation is that it is being done with absolute impunity by the state and its officials. No one is caring or bothering about the Constitution, a sacred testament and a commitment with the citizens that the country would be governed through and in accordance with the letter and spirit of the Constitution, not otherwise. However, the Constitution has been reduced to a mere platitude and a piece of paper at the hands of chosen representatives.
The Note also traces the root cause of the absolute impunity from violation of the Constitution on the part of the state and states that it is the very judiciary which has been complicit with the illegitimate usurpers. The martial laws would not be imposed if the judiciary did not play the role of an accomplice. The role of the judiciary in this regard has been very objectionable and questionable. The judges took the oaths from the usurpers and that too in violation of the Constitution. The judges of the very judiciary served as legal adviser to the dictators. We must accept that it is only the judiciary with the help of which it has been possible to suspend and violate the Constitution for multiple times.
The recent violation of the Constitution to create an impasse by the President, E.C.P and the Governors amounts to clear violation of the Constitution. The very act of violation offends the vires of Article 6, which is high treason. The very article has been enacted for sole purpose of deterrence for the usurpers and violators of the Constitution but unfortunately, it has not worked well and has failed to deter the delinquents. This is not possible without the help of the judiciary.
The Note after extensively analysing the Constitutional provisions related to elections and lamenting the complicity of the judiciary to legitimise the rule of usurpers, turns towards the remedy as to how to make the delinquent officials and the violators of the Constitution responsible for violating the Constitution. This is most significant and profound part of the Note, which serves as a guiding light for the citizens to claim compensation for violation of the their rights.
The Note further states that Article 212 mandates that there must be administrative courts across the country where the general public can bring their claims against the violation of their rights by the state or its officials. These courts are supposed to be administrative courts and they have to address the issues of tortious liability on the part of the state and its officials. Unfortunately, such courts have not been set up up till now, but the Note suggests that non-existence of such courts does not abate the Constitutional right i.e. tortious liability claims, of the citizens. The citizens are still holding this right conferred on them by the virtue of Article 212 and they can resort to ordinary courts of plenary civil jurisdiction for the enforcement of this right unless the proper administrative courts are set up. The Note advises the citizens that their right to representation and to choose their representatives have been violated by the President, E.C.P, the two Governors (Punjab and KP) and the Federal Government. Thus, the citizens can approach the courts to claim tortious liability, compensation or vindicated rights against the officials.
The Note asserts that if these courts for tortious liability have been set up since the day first and they have been functional, the situation would have been much different, and there would have been some amount of deterrence on the part of the state and its officials from violating the Constitution and the people’s rights. However, the citizens are still at liberty to take this Article, 2112, into motion by filling or bringing their claims of tortious liability in the light of this Article in civil courts as well as the High Courts, as the case may be. This is the only way left with the people of Pakistan to deter the state officials from violating their fundamental rights.
const.p._32_2023_additional_note
