The decision and accountability
April 27, 2001
Another Supreme Court decision is making waves this week. The NAB law as it stands today is a harsh document, described as draconian by its own Chief Prosecutor. There was clearly a need to tone it down and bring it in conformity with the principles of natural justice. The honourable judges have decided to do just that. Only time and practical application of the changes would tell whether they have succeeded.
Not everyone is happy. Some feel that the changes ordered by the court are only cosmetic. That fundamentally unjust aspects of the NAB law have not been touched. A particular mention is being made of a provision that puts the onus of proving innocence on the accused. This is contrary to the basic legal principles. An accused is always innocent unless proven guilty. This shift in procedure and responsibility has no other parallel in our system. Nor in any other civilised legal system in the world.
This essentially liberal democratic point of view is not universally shared. Many people believe that in our circumstances it is very difficult to prove white collar/financial type of crime. Only the very foolish leave a paper trail behind. The way to catch and punish the visibly corrupt is to ask them to identify the source of their wealth. In other words ask them to prove where they got the money to buy the property and the luxuries they so wantonly flaunt. This may not meet the test of fundamental justice but it is effective.
This debate is not likely to end soon. Those that have borne the brunt of NAB's wrath are bitter. They tell horrendous stories of filthy treatment, shoddy investigation, and constant harassment. Many complain of having been smeared with the tar brush of corruption and then told they have done nothing wrong.
The aggravation caused to their family and the damage done to their social standing is beyond calculation. This pain will never go away.
Then, there are those that have been baying for the blood of the corrupt. Nothing less than a massive clean up would satisfy them. They are unfulfilled, and cynical of the whole process. Not enough people are hanging from the lamp posts. Not enough looted wealth has been recovered. Not enough examples have been made to deter the corrupt of the future. In short, they say, there has been a lot of sound and fury but not enough results to go with it.
The pendulum swings one way or the other. You see what you want to see. Both are right and both wrong. The truth as always, is somewhere in between. Neither is this a nothing accountability drive. Nor is it the best that there can be. Like life itself, it has achieved something. But, it has not achieved everything that it set out to do. Its lofty ambitions have been tempered by the harsh landscape of reality.
Nothing is always straight in our glorious land. Yet, it would be unfair not to acknowledge the good while trashing the bad. Clearly, never in our history has there been a more sustained and serious accountability drive. Yahya did a hatchet job by removing over 300 civil servants and Bhutto sacked 1300. This was not legal, case by case accountability. It was list making based on hearsay.
Zia only focused on murdering Bhutto and appeased everyone else. The political governments that followed used corruption charges to achieve political ends. Mr Sharif as we know even subverted the judiciary to eliminate political opponents. This was not a commitment to accountability. It was politics by other means. This the current accountability drive, however flawed, is serious business.
It started on a bad note by focusing too much on the business community. When this was corrected, the political ambitions of the government started to come in the way. Many political families known for their corruption were spared. Others on the wrong side of the regime targeted. Yet, these handicaps notwithstanding, a stake of fear has been driven into the heart of looters and plunderers. This is not a mean achievement.
The recent arrest of Admiral Mansur-ul-Haq in the US is a significant triumph. It must be giving the likes of Salman Faruqi, and others like him hiding in the US, sleepless nights. Within the country we are seeing convictions on corruption charges for the first time. Many other cases are close to fruition. While not an ideal effort, even coming so far in our environment is an accomplishment.
Some of the egregious methods of investigation will now be controlled with the Supreme Court decision. It has drawn a fine balance by not neutering the drive. Yet, it has removed unnecessary discretion available to the prosecution. The Court has only faltered by needlessly inserting the Chief Justice as a consultee on appointments that are clearly in the executive domain.
Two other matters that could have been dealt differently are accountability of the judiciary and of the armed forces. No citizen of a country should have any superior right over any one else. All should be subject to the same law. However, procedural changes can be made to ensure the sanctity of these institutions.
Accountability of the higher judiciary through the Supreme Judicial Council has been a farce so far. In our entire history, only two or three superior court judges have been dealt with through this institution. Clearly they were not the only ones whose conduct has been below the laid down judicial standards of behaviour.
Why go back into history when there are current examples where the Supreme Judicial Council is proving to be a toothless institution. After the Supreme Court decision on Benazir Bhutto's appeal, Justice Rashid Aziz and Justice Qayyum should have done the honourable thing and resigned. These gentlemen do not seem to be in any mood to do this. And, there does not seem to be any person or any institution ready to give them a nudge in the right direction.
The longer the matter is being delayed the more politicised it is becoming. The legal fraternity is dividing on political lines. Some judges are unjustly being accused of being pro PPP. Others are trying to shield behind PML elements. This is bringing the entire institution into disrepute. Either the Supreme Court full bench is right and if it is then judges Rashid and Qayyum should go. If it is wrong, and who will determine this, we might as well wind up the superior courts and begin again. This situation should not be allowed to last any more.
If nothing else this impasse demonstrates the need for a better accountability mechanism for the superior judiciary. Perhaps a committee comprising of judges, members of the bar and some eminent citizens should first look into complaints about superior court judges. There should be no necessity of a formal reference from the President or anybody else for this purpose. Once this committee determines that there is sufficient cause for further investigation it should refer the matter to NAB.
Once the matter is referred to NAB, the concerned judge should go on a leave of absence until the matter is resolved. If the NAB feels that there is sufficient ground for prosecution, the judge should be suspended and case referred to an accountability court. On acquittal the judge can be reinstated. If convicted he or she should suffer the same fate as any ordinary citizen.
The method being proposed has sufficient checks to weed out frivolous complaints. Yet, there is enough transparency and access to the public for it to be fair. The issue of public access needs to re-emphasised. Under the current system of Supreme Judicial Council, the public has virtually no role.
A slightly different procedure can be followed for the armed forces. If cases of corruption emerge within the forces, the first inquiry should be conducted by the service itself. Only if it finds that there are sufficient grounds, should the matter be referred to NAB. Then the same procedure can be followed as described earlier for the judiciary.
The services own system maybe quicker but the principle being emphasised here is that all citizens of a country must be treated equally. There should not be any holy cows. If we start making exceptions then the politicians can claim that they should be tried by the parliament. Others such as the bureaucracy can have similar claims. This would obviously create a complexity that a transparent and just legal system cannot afford.
The Supreme Court decision is a step in the right direction. More needs to be done to complete this journey. A transparent and fair accountability process, applicable to all citizens of this land, will cure at least one of the many ills that afflict us.
The author is former Senator, former federal and provincial minister