Independent accountability need of the hour

By Barrister Amjad Malik

I read with great interest the prime minister’s statement on Tuesday at Bahawalpur. Warning the National Accountability Bureau (NAB) to stay “within limits” and to stop threatening and harassing government employees, or action will be taken against it on NAB’s procedural operational style. I am sharing my view on the matter for your perusal and consideration to aide as a matter, as and when this matter comes under discussion at party and or administrative level.

PM Statement on NAB working

The Prime minister’s statement on Tuesday at Bahawalpur warning the National Accountability Bureau (NAB) to stay “within limits” and to stop threatening and harassing government employees or action will be taken against it on NAB’s procedural operational style as under the article titled

‘PM Warns NAB To Stay ‘within Limits’ Or Face Action’ dated February 17, 2016 ,  By  OTHERS.

NAB Responded without time, “NAB is an independent body due to government’s policy of non-interference,” A NAB spokesman said “National Accountability Bureau (NAB) respects the opinion of Prime Minister Nawaz Sharif about the functioning of anti-graft body, a spokesman said.“we had inherited some issues and steps were being taken to address them,” the spokesman said in a statement today.NAB is an independent body due to government’s policy of non-interference,” he said, adding that accountability process would be improved in the light of suggestions given by the prime minister.

I think corruption is a relevant issue but governance, defeating terrorism, economic empowerment and addressing energy needs is vital and politically relevant.

I opined earlier on NRO that corruption in PPP regime and NRO has the potential to smite the civil system of governance and democracy, in my article ‘Corruption threatens the civil system of Pakistan’.

I opined at Aljazeera on 21 December 2009 when the Supreme Court passed an order on NRO declaring it unlawful that NRO was a political mistake of General Musharraf (see Inside Story - Corruption and Politics in Pakistan - 21 Dec 09).

On 28 October 2011 Mian Shehbaz Sharif opined in public that "Step down Zardari and hand over your money otherwise we will hang you and your cronies upside down here," cried Shahbaz Sharif while addressing the crowd. - See more at: http://www.geo.tv/latest/32940-zardari-should-step-down-shahbaz#sthash.H8Ddy138.dpuf. I consider this a political statement in public rather than a serious intention to pursue that line of action.

I further opined that when the matter went beyond limits and there was a risk that the Supreme Court will de-seat the chief executive on contempt on NRO implementation case. I made a call to save the civil system in which all these enjoyments of civil rights and liberties exist, please see the article ‘A call to save the system, a call of sanity’ by pakpoint on December 19, 2009.

The whole idea of discussing the background was to discuss it openly the future of NAB, please see ‘Parliamentary oversight of accountability likely’ By Tariq Butt February 18, 2016

We have in the past tried and tested accountability and General Musharraf’s 9 years rule claim and hallmark was to make things fairer if we see his 7 points agenda.

Ex Judge Malik Muhammad Qayyum was appointed an Attorney General by the President of Pakistan and critics were on their heels on such accolade for the one who resigned as a judge. His judgments are very famous too, in one judgment he granted fines to top Cricketers and maligned Pakistan all over the world for corrupt practices and match fixing and brought disrepute to home soil and on the other in April 1999, then Justice Qayyum found Ms Bhutto and her husband, Asif Ali Zardari, guilty of taking a $4. 3m (£3m) commission after awarding a pre-shipment inspection contract to the Swiss firm Societe Generale de Surveillance. Both were fined $8. 6m and jailed for five years. While Mr Zardari was already in jail awaiting trial on other cases, in its ruling in 2001 the Supreme Court found a string of complaints against the judge's handling of the case and noted that "bias is floating on the surface of the record." 

The judgment was over turned in an explosive 

55- page ruling handed down by Pakistan's Supreme Court in February 2001, where one of the country's most senior judges has been singled out as being clearly biased in his handling of the case that judge no other, but was Justice Malik Muhammad Qayyum. With the release of the court's full ruling, pressure mounted on the judge to resign and whilst the military regime was considering filing a legal action to force the judge out of office, he resigned. In the judgment SC said "We are convinced that the trial in this case was not fair and on account of bias of the Ehtesab Bench (Pakistan's anti-corruption courts) the trial of the appellants stands vitiated," it said. 

The court found Justice Qayyum and his wife had applied for diplomatic passports on April 17, 1998 after taking up the case. Diplomatic passports are not usually issued to judges and the foreign ministry opposed the application. Then on April 27 Justice Qayyum issued an order freezing the properties and assets of Ms Bhutto and Mr Zardari. Three days later the judge and his wife were granted diplomatic passports by then Govt. The supreme court said that this showed the judge had "acquired a personal interest" in the case and that there was "close liaison" between the judge, Saifur Rehman, the minister in charge of the anti-corruption bureau, and Mr Sharif himself It also said that the judge had ignored the 10 other accused in the trial and rushed the hearing. The ruling said that Zardari Benazir's husband was not given the chance to recall witnesses for cross-examination and the defence had been allowed to call only one witness and the Supreme Court noted that the verdict was written and dated April 14, one day before the trial actually ended. At the trial defence lawyers at the appeal hearing had also handed in evidence of taped conversations, which appeared to show the then law minister, Khalid Anwar, Mr Rehman and the judge discussing the case and the imminent verdict. "Give them full dose," Mr Rehman told the judge. Prosecutors said the tapes were fake and the Supreme Court, perhaps wary of the political fallout, said that there was already enough evidence of bias in the case and therefore no need to look at the tapes. MsBhutto had left Pakistan shortly before the verdict and has never returned and now she is trying to return this year to commence her efforts to regain her old position. 

Lessons are there to learn and the charter of democracy provided that opportunity. Crucial topics such as appointment of judges, via non political and unbiased commission, non controversial non political ethical future lawyers who in the end became judges, politics free bar, training of lawyers and judges, accountability & financial autonomy of top judiciary including their protection and true separation of administration from judiciary are the questions which I can think of to start with. However, I know that the true work will start once we show the will and we must be ready to play our due role even if the task lands on us all of a sudden.

I have also learnt that Govt is contemplating a new law to ensure the parliamentary oversight which is likely to be tightened in the accountability process under the fresh amendments in the National Accountability Ordinance (NAO) 1999.

Historical Facts

The National Accountability Bureau (NAB) presented to the last government a list of 248 politicians and bureaucrats, who were alleged to have plundered hundreds of billions of rupees but were cleared by the NAB under the National Reconciliation Ordinance 2007.

Luckily, the presidential order could not be enacted by Parliament and averted national and international embarrassment though the order was initially stayed by the top judge of the land. However, public pressure is mounting to bring those to books and a debate has ensued to have a national mechanism to rid, curb and deter corruption once for all in the country.

Public demand is ever growing for imposition of a higher  sentences for corrupt across the board nationally in order to hold those on public position(s) accountable in order to recover public money, disqualify them from public offices and award those culprits exemplary sentences including that of a death sentence (if needed).

The message is clear that nobody is above the law, and no one is immune when the matter is of dishonesty and corruption especially in public purse.

Islamic history and jurisprudence is full of incidents where the head of state remained sub judice to Qazi and answerable to public. Caliph Omer freely appeared before a Qazi so as Hazrat Ali who appeared in a case of dispute with a Jewish businessman, and off course nothing can be legislated against the Quran and Sunnah in Pakistan but critics will argue that its 21st century, law, constitution etc.

Other countries have eradicated corruption from their ranks. Some cleaned the top leadership as in Malaysia and some made it a criminal office punishable to death as is the case in China.

The death penalty is an effective means of state-driven innovation, especially against entrenched or widespread defective social structures. Its use against corruption is not in itself new, and it is still applied effectively in China.

The recent NRO scandal is a quick reminder, that in the heavy population developing countries. Corruption, self-enrichment, and nepotism are part of the political culture in - so much so, that they form a major argument against democracy itself.

Though many countries have signed Protocol Six of the European Convention on Human Rights, which prohibits the use of the death penalty in peaceful times, however including china & Pakistan some 59 countries have not signed that protocol.

The death penalty is legal in 59 countries and 25 of them used it last year to execute almost 9,000 people and Belarus is the only European country where the death penalty is still used.

Pakistan is amongst those 59 who awards death sentence freely but many of the villains become victims because of their complaints of ill treatment, torture in obtaining confession(s), unfair trial coupled with weaker prosecution, trumped up politically motivated charges and or contaminated evidence.

If we see a few examples how the deterrent is used, it will make it easier why it is necessary.

Lets see China first where in 2007 Cao Wenzhuang, who was in charge of drug registration approvals at Food and Drug Administration, was accused of accepting more than $300,000 in bribes from two pharmaceutical companies thus shaking the public’s confidence in an agency that is supposed to be safeguarding the nation’s health. He was sentenced to death for corruption and approving counterfeit drugs on 6 July 2007.

In the same year Court in Beijing sentenced Zheng Xiaoyu, the former head of the Food and Drug Administration to death for accepting $850,000 in bribes to help steer drug companies through various approval processes. The death sentences appeared to be a strong signal that China is determined to crack down on rampant fraud, corruption, and it is working very well especially where public health, and public purse is concerned.

There were complaints of accused fleeing the country before caught so on 29 April 2006, China ratified an extradition treaty with Spain, the first between China and a Western country. The treaty marks a major breakthrough which will ensure the return of the absconders to the jurisdiction of Chinese law.

In Vietnam, on 30 December 2008, The Vietnamese National Assembly's Standing Committee rejected removing the death penalty for corruption, fearing crime may increase without a strong deterrent. Deputy Duong Trung Quoc said at the occasion, that, “I don't support abolishing the death penalty for corruption as many officials will be ready accept jail terms to secure their children's future." Vietnamese National Assembly Deputies rejected removing the death penalty for 17 crimes altogether, ranging from rape and treason to producing fake goods which could endanger people's health and according to government statistics Vietnam has executed 82 people in 2008 alone.

In Russia, on November 2009, the Russia's constitutional court began hearings into whether the death penalty can be re-introduced after a 10-year moratorium. The tribunal is to examine by January 2010 the issue after a request by the supreme court. In 1999 the court ruled that the death penalty could not be used until jury trials had been introduced in all of Russia's 89 regions. The supreme court took the case to the constitutional court in order to clarify as the first ever jury trials will take place in Chechnya on 1 January 2010. However a recent survey in Russia shows around two thirds of Russians support the death penalty.

The list is exhaustive of surveys and case studies, but how and who will bell the cat is the question.

Way Out

First of all we will have to have a mechanism where we clear the historic mess of 62 years where charges may have been framed ultra vires by abuse of authority based on vengeance.

Accountability process was agreed in Charter of democracy between major political forces in May 2006 and Para 13 talks of the setting up of a ‘Truth and Reconciliation Commission’ to acknowledge ‘victims of torture, imprisonment, state-sponsored persecution, targeted legislation, and politically motivated accountability’.

I think that could be a starting point. Once the backlog is sorted, then we may go to setting up an independent body which has the confidence of legislatures and in return the masses.

Para 13 (d) talks of an independent accountability commission, it says,         

“ To replace politically motivated NAB with an independent accountability commission, whose chairman shall be nominated by the prime minister in consultation with the leader of opposition and confirmed by a joint parliamentary committee with 50 per cent members from treasury benches and remaining 50 per cent from opposition parties in same manner as appointment of judges through transparent public hearing. The confirmed nominee shall meet the standard of political impartiality, judicial propriety, moderate views expressed through his judgements”.

If historic backlog is filtered judiciously and a body is framed with political consensus, then law could be passed to mandate the body to filter, check and charge the corrupt and present them before a court of law for punishment.

Now we come to judiciary. In any adversarial system, there is a lawyer for and against and a judge hears the case, decides on facts and law giving confidence to both parties on the ‘judgement’.

PM has done a great thing by stepping aside his law Minister who was part of dictatorial team at that time, but there is an endless list of people around who will need an axe if such a line is pursued.

A calmer man on PM’s position can be advantageous. There is a huge infrastructure flaw in the criminal justice scheme of Pakistan and it needs a revamp.

Such flaw is because of a huge gap of communication and real separation and unity of command between investigators & prosecutors.

The ratio of conviction of those tried even for terrorism is so low and alarming. Mechanism of Prosecution needs immediate attention and improvements. First of all Pakistan needs a prosecution set up independent of police which has its own provincial and national directorate, independent recruitment process and mentoring and monitoring procedure. Currently it’s too muddled. Party divisions affect its performance which must not compromise the overriding objective to promote rule of law, prosecute fairly and secure convictions.

We need to have a ‘State Prosecution Service’ which ensures independent prosecution, keeps a check on criminal investigation and separate that of genuine crime fighting to that of abuse of process and faulty unsafe investigation(s) and takes forward cases if they have greater chances of securing convictions.

Executive must understand the need to have a set up independent of the prosecutors and give wider checked powers to law enforcement specialist units which deals with special threats of terrorism and jointly assist each other in a coherent mechanism to avert attacks and God forbid if they happen, act quickly to arrest or chase those involved successfully.

Even specialist anti terrorist court judges are confronted with the question of under training, over work and lack of security, let alone accountability court judges.

Topping it all, witness protection is next to none.

We also witnessed that in some cases accused of terrorism offences were snatched from police custody in a day light from the city court compound. Above all, like England and USA intelligence community’s high command is reluctant to share vital pieces of intelligence, informers report, sensitive tip offs in order to avoid compromise on their intelligence gathering mechanism due to the lack of trust on each other. Or shall I say they are aware of the pit falls of the bleak system in which they operate. Keeping in view of these issues what can we do to reform our existing system so that we can bring more prosecutions, double the rate of convictions and sentence freely those involved in heinous crimes as well as terrorism and reach to those masterminds who move their strings.

On the day, a judge has to dispense justice, and of course justice needs to be seen to be done, and the orders must meet the norms of justice. If harsh punishments are to be introduced then there must be a system to offer a fair trial.

So far Pakistan has failed to offer and meet the criteria and best practice to ensure a fair trial, that area needs to be strengthened and no best than the current judiciary can make progress in this area only if the political will is present in parliament.

It is not a day’s job and it is worth pondering that if nation is disappointed by these current day ruler(s), no one will believe their slogans of democracy tomorrow.

Pakistan has been used as a ‘market stall’ by its elite. Leaders come and put their stalls, make money and run, Premier Nawaz Sharif is changing that trend.

Good governance, justice at the door step, discipline, tolerance, democracy are confined to electioneering slogans.

When NRO was introduced , public demanded the introduction of a ‘Death sentence’ due to that fact that political figures made millions in a business’s relevant to their ministries without declaring their interest or assets in an area where conflict of interest floats on the surface of an argument and they freely stored their millions abroad.

Nexus of our judges with Generals so far in the past in Pakistan hindered democratic flow and process, politicians have not left good governance or worth remembering legacy either and the struggle must be for strengthening the institutions remaining in civil structure, as we must keep in mind that worst piece of legislation (NRO) was arbitrarily introduced by retiring General who came on October 99 to rid Pakistan from Corruption and corrupt leaders.

If system is strong enough and is allowed to run at its full capacity with free media and judiciary as monitors, it will automatically start chunking out leadership with brilliance as is the case in the West, in particular UK, United States or even India.

Chinese officials who had committed economic crimes began to flee overseas between the late 1980s and early 1990s. China signed extradition treaties with 25 countries, including Thailand, Belarus, Russia and South Korea since 1993, it had not finalized such treaties with European and North American countries, therefore, Western countries, particularly Canada and the United States, became the favored places of asylum for corrupt Chinese officials.

Pakistan faces the same dilemma, political and bureaucratic plunderers have an asylum option open with their dual nationalities to run any time and seek shelter at UK, USA and Canada where in the absence of extradition treaties, west will not expel them due to a fear of death penalty, that lacuna needs to be addressed by Parliament and court(s) to make ‘exit Control List’ effective and to check people who enter public offices to submit their foreign passport(s) and properties assets list with the election commissioner.

The introduction of the death penalty for corruption, bribery, nepotism and dishonesty robbing the public purse is one of the few effective way(s) to end or at least deter the culture of corruption amongst ultra constitutional politicians, bureaucracy, military generals and judges who are part of the elite club. But it is easier said than done. I feel criminal justice system is very poorer and need revitalisation before any drastic step of such nature is taken.

The death penalty could be applied, for instance, in cases where a public office holder dishonestly robs millions from public purse in the form of commission (i.e in foreign arms and goods deals) or uses systematic mal practice to gain financial advantage in billions(like in sugar, flour and electricity crisis).

Fair trial is not a private property, it’s a myth. I opposed the dictator twice through petition(s) when he deposed Chief Justice and secondly when he sought membership of the parliament, but still State infrastructure is so weak that I feel reluctant to recommend that a challenge of ensuring ‘due process’ and a ‘fair trial’ must be accepted by the current Govt and or top judiciary on any politician of top stature on a charge which carry death penalty. We have suffered at the hands of Bhuttoo senior trial and we must learn lessons from it.

May be the label ‘Usurper’ as outlined in the SC judgement and a charge under Article 6 suffice to send a strong message and a deterrent to those who matter especially in Gen Musharraf case, rest the fate of NRO beneficiary should be in the hands of judiciary not executive. 

I note that Mian Shehbaz Sharif has a stern view on corruption, but political reconciliation is conducive and is an art to save and complete pmln tenure in Govt.

We'll hang Zardari and his cronies upside down: Shahbaz Sharif

https://www.youtube.com/watch?v=nirf_frF-LY

Despite Mian Shehbaz Sharif’s emotional statement in press and talking to public, its my opinion that when we are up against terrorists, Death sentence may be harsh on white collar crime when recovery of funds may be cost effective due to resources, and weaker criminal justice system and a room for manipulation as past speaks for itself.

Death sentence should be implemented if a fair trial and due process of law is guaranteed but probably a necessary strategy in Pakistan to re-establish control over corruption ridden institutions. Collateral damage may be high, but if the robust and reliable system enforces law where poor public are living without sugar, electricity, gas, will have less complaint or it will ease their pain of suffering(s) if a few thousand guilty corrupt are tried and sentenced by a court of law as a starter.

That’s the least the Govt can do to ensure public confidence on the system of governance. People can live in poverty, but living is difficult if the elite continues unchecked robbery from public purse. Public perception is that Pak politics is but a means to achieve greater influence, and to plunder more wealth and on the whole society collectively need to change that public perception and Politics on a cup of tea is the only way forward.

Conclusion

1)  If system is strong enough and is allowed to run at its full capacity with free media and judiciary as monitors, it will automatically start chunking out leadership with brilliance as is the case in the West, in particular UK, United States or even India. Even existing system without NAB can bring results as all those crimes mentioned in NAB ordinance can be prosecuted under normal criminal justice system, graft, bribery, deception, cheating, plundering public wealth all white collar crimes are inscribed in legislation. But still a new law can enact possible role model office of NAP like election commission.

2)  I do not favour death penalty for corruption. Death sentence for corruption may be very harsh in a political vindictive society and should be introduced only if a fair trial and due process of law is guaranteed but probably a necessary strategy in Pakistan should be to re-establish control over corruption ridden institutions through a law which is effective. I would strongly support a fairer trial system, and recovering looted money than longer sentences but surely with disqualification from public office for two terms.

3)  Collateral damage may be high if only sentences are carried out without recovery of plundered wealth, but if the robust and reliable system enforces law where poor public are living without sugar, electricity, gas, will have less complaint or it will ease their pain of suffering(s) if a few thousand guilty corrupt are tried and sentenced by a court of law as a starter.

4)  Truth and reconciliation commission:  First of all we will have to have a mechanism where we clear the historic mess of 62 years where charges may have been framed ultra vires by abuse of authority based on vengeance.

5)  National Accountability Commission (NAP): accountability commission Para 13 (d) talks of an independent accountability commission, it says, “ To replace politically motivated NAB with an independent accountability commission, whose chairman shall be nominated by the prime minister in consultation with the leader of opposition and confirmed by a joint parliamentary committee with 50 per cent members from treasury benches and remaining 50 per cent from opposition parties in same manner as appointment of judges through transparent public hearing. The confirmed nominee shall meet the standard of political impartiality, judicial propriety, moderate views expressed through his judgements”.

6)  Separating the investigation of NAB from executive, and presentation, and trial

7)  Accountability judges must be specialist to deal with such matters.

8)  Fairer, faster and firmer justice system to root out miscarriage of justice with delays lingering on allegations of misappropriation of public wealth.

9)  Law reforms to effect that changes

10)  Perception: politicians easily lose on perception. Its a fact that NRO was given by general Musharraf, and its fact that we will have to resolve issues confronted by public as any wait for a messiah is an illusion. That perception needs to be built by giving information, realistic advice, and strengthening public points, NA, political parties and civil society by disseminating right information . do not let them win on ‘perception’.

I reiterate again that PMLN under the leadership of Prime Minister Mian Muhammad Nawaz Sharif and Chief Minister Punjab Mian Muhammad Shehbaz Sharif in Punjab is already heading in that right direction to achieve the following : a) to end terrorism post 16 December 2014 APS Peshawar through zarab e Azab and NAP and its time to show international world what is achieved; NAP is a role model procedure adopted by PM of Pakistan to discourage defeat and deter terrorists; it is getting international acknowledgement and national dividend. b) to revive economy through Pak China corridor ,Guwadar port and industrial marathon revolution and by political stability without witch hunt, as that's the game changer which will guarantee next victory By the Grace of God Almighty and c) by meeting the energy needs by setting up dams and energy infrastructure and power projects  and meeting electricity shortfalls as we are mandated by the people of Pakistan and we promised to turn their darkness I go light by end of the term. Water shortage in sindh and Pakistan will be the mother of all crisis and your work towards it will save generations.

Let's not divert our attention, and lets us not let them change the goal post .lets not let them  win on perception as lies frequently talked about become ‘half truth’ and our job is to hold on with patience, grace and eyes set on our goals. Pakistan has a chance to turn around economy, end extremism and address energy shortages. Pakistan still has a chance otherwise darkness is looming on our heads.

Barrister Amjad Malik is a chair of the Association of Pakistani Lawyers (UK)

Friday, February 19, 2016