State’s tortious liability towards its citizens
The writer is a lawyer
Honourable Justice Athar Minnallah of the Supreme Court has recently released his additional note in the 90-day election case which takes into account the chequered history of the dissolution of National and Provincial Assemblies and the aftermath of such dissolutions in the light of the constitutional provisions, showing his utmost dismay on the delay of election across the country.
Justice Minnallah’s note states that the President, the ECP as a whole and the Governors of two provinces, Punjab and K-P, have created a constitutional impasse in connivance with the Federal Government. The current caretaker setup has continued far beyond the 90-day mandate, and the note declares it a violation of the Constitution and subjugation of the rights of the people of Pakistan.
The right to choose representatives and be governed by the chosen representatives is being violated continuously. The worst aspect of this violation is that it is being done with absolute impunity without an iota of fear by the state and its officials. The Constitution has been reduced to a mere platitude and a piece of paper at the hands of chosen representatives.
The note traces the root cause of the absolute impunity and fearlessness from violation of the Constitution on the part of the state officials to the judiciary. It is the 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 judges took the oaths from the usurpers in blatant disregard of the Constitution. The judges of the very judiciary served as legal adviser to the dictators. It is the judiciary with the help of which the Constitution has been suspended and violated multiple times.
The recent violation of the Constitution by the President, the ECP and the two Governors to create an impasse amounts to a clear violation of the Constitution. The very act of violation offends the vires of Article 6, which is high treason. This Article has been enacted for the sole purpose of deterrence for the usurpers and violators of the Constitution but unfortunately, it has failed to deter the delinquents. This is not possible without the help of the judiciary.
The additional note, after extensively lamenting the complicity of the judiciary to legitimise the rule of the usurpers, turns towards the remedy i.e. how to make the delinquent officials and the violators of the Constitution responsible. This is the most significant and profound part of the note, which serves as a guiding light for the citizens to claim compensation for violation of their rights by the state officials.
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 officials. Unfortunately, such courts have not been set up till date, 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 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, the ECP, the two Governors and the Federal Government. Thus, the citizens can approach the courts to claim tortious liability, compensation or vindicated rights against these officials.
The note asserts that if these courts for tortious liability have been set up since the day one, 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 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 citizens to deter the state officials from violating their fundamental rights.
Published in The Express Tribune, December 6th, 2023.
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