By Farrukh Saleem
Judgement, “not passion should prevail”. Justice Athar Minallah of the Islamabad High Court has delivered a landmark judgement – BNP Pvt Ltd., v Capital Development Authority. The case involves One Constitution Avenue – an upscale, high-rise, twin-tower real-estate development – in which the entire who’s who, the elitist-of-the-elite of Islamabad own at least one apartment.
In the 12,832-word judgement the word ‘authority’ appears 147 times, the word ‘regulation’ appears 55 times and the word ‘regulatory’ appears 15 times.
For the record, there are some two-dozen regulatory authorities in Pakistan. Among them: the Capital Development Authority (CDA), the Pakistan Telecommunication Authority, the National Electric Power Regulatory Authority, the Pakistan Electronic Media Regulatory Authority, the Oil and Gas Regulatory Authority, the Drug Regulatory Authority, the Civil Aviation Authority, the Public Procurement Regulatory Authority, the Pakistan Nuclear Regulatory Authority, the Frequency Allocation Board, the Pakistan Medical and Dental Council, the Pakistan Engineering Council, the Pakistan Environmental Protection Agency, the State Bank of Pakistan, the Securities and Exchange Commission of Pakistan, the National Accountability Bureau and the Competition Commission of Pakistan.
Justice Minallah’s judgement has a potent warning for all regulatory authorities in Pakistan. On the CDA, Justice Minallah writes, “The Authority, therefore, has been entrusted with the statutory status of a trustee. It holds the land in trust on behalf of every citizen of Pakistan, thus giving rise to a relationship which is fiduciary in nature. As a corollary, the power of disposal of land would attract the duties and obligations of a fiduciary”. He adds: “Islamabad, being the capital of the country, every inch of its land belongs to the entire public of Pakistan”.
What that means is that all regulatory authorities in Pakistan have been “entrusted with the statutory status of a trustee”. Yes, all regulatory authorities hold the interests of every citizen of Pakistan ‘in trust’ and the relationship between Pakistan’s regulatory authorities and the citizens of Pakistan is “fiduciary in nature”.Yes, each and every regulatory authority in the country is under legal obligation to uphold the interests of 200 million Pakistanis – and no one else.
The judgement states that the“authority, as a statutory organisation, has to act in the public interest”. In my article, ‘Raiding the state’ – which was published in these pages on August 14, 2016 – I wrote: “The most popular game in town is ‘raiding the state’. The state has huge resources-land, natural gas, oil, water, mines and minerals. The real owners of all these resources are the 200 million Pakistanis but the game is all about getting hold of these resources at a fraction of their fair market value – for private gains. Actors: The plot of ‘raiding the state’ has at least three actors-businessmen, politicians and bureaucrats-acting in concert. The goal is to transfer state resource from the state into private pockets”.
To be certain, corruption does not take place in a vacuum. In fact, mega corruption cannot take place without the complicity or tacit approval of Pakistan’s regulatory authorities.
Red alert: regulatory authorities beware; you are holding Pakistan’s assets ‘in trust’ for the 200 million Pakistanis, and the relationship between you and the citizens of Pakistan is “fiduciary in nature”. This means that the relationship involves trust. Pakistan’s regulatory authorities are the trustees and the 200 million Pakistanis are the beneficiaries.
Red alert: if a regulatory authority breaches the “trust” then “the chairman and each member of the board of the authority are jointly and severally responsible”.
Red alert: this is the first such case in the long-chequered judicial history of Pakistan that has gone against the elitist-of-the-elite.Fiat justitia ruat caelum or let justice be done though the heavens fall.