Amjad Malik specially writes on post NRO scenario on corruption
The National Accountability Bureau (NAB) presented to the government on Thursday 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 styed 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 death sentence 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.
Lets see how 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. 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 indecent 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’. 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. Good governance, justice at the door step, discipline, tolerance, democracy are confined to electioneering slogans. In current sugar crises leaders made millions, especially those were politically in charge of the food distribution sector nationally. That is the reason that public demands the introduction of a ‘Death sentence’ due to that fact that political figures made millions in a businesses 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.
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). Death sentence may be harsh and 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 hanged 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, not in palaces.
Amjad Malik is a solicitor Advocate of the Supreme Court of England and Wales