Corruption is well known to be a problem of society. Most complaints about corruption center around the illegitimate amassing of wealth by elites who use public office and public resources for their own personal gain. By reducing the amount of money available for public improvements, corruption of this sort does great harm to the country. They other type of corruption that is most often discussed is the practice of favouritism and nepotism by those in power, another way that the nation’s wealth is amassed by the powerful few and their friends. But it is not only these acts themselves that harm the national interest. The mere appearance of corruption is, in itself, enough to cause great harm and should also be avoided.
Avoiding the appearance of corruption is equally important to avoiding actual acts of corruption because even the mere appearance of corruption is enough to have a negative effect on the people’s faith in their national institutions. When people believe an institution is corrupt, every decision taken will be done under a cloud of suspicion, not matter whether it was legitimate or not.
Let us take a recent example as a demonstration.
National Accountability Bureau appealed to Supreme Court on Wednesday seeking recovery of property held by Nawaz and Shahbaz Sharif that is attached to Hudabiya corruption scandal. The court rejected the appeal saying “NAB has no authority to recover the property and, therefore, we see no force in this case. Dismissed.”
The next day, the Supreme Court heard arguments related to another corruption case – one involving the President Zardari. In this case, the PM was asked to explain why he has not written a letter to Swiss authorities requesting that corruption cases be reinstated against Zardari. The PM explained that he had not ordered the letter because the president enjoys constitutional immunity while he is in office, so he has no authority to do so. Meanwhile, the Swiss themselves have said also that the cases cannot be revived, even if Pakistan asks for it. According to the Swiss chief prosecutor Daniel Zappelli, he has “no evidence” to bring Zardari to trial. So the Supreme Court also dismissed the case against Zardari for the same reason they dismissed the case against the Sharifs, right?
In the case against Zardari, even though the constitution clearly says the president has immunity, the judges began speculating that maybe they would not honour the constitution’s clear words and ordered the PM’s attorney Aitzaz Ahsan to prepare an argument convincing them. Ahsan then requested one month to prepare his case, and the court told him he had less than two weeks. Justice Khosa thought he should be given one day.
Why one case before the Supreme Court is treated so much differently than another? It is hard not to view the two cases in the context of the recent personal history of the main characters. When Asif Zardari was elected as president, he was slow to reinstate Iftikhar Chaudhry as chief justice. Nawaz Sharif came to Iftikhar’s rescue by organising a long march in support of the Chief Justice. Even though it was Zardari who actually reinstated the Chief Justice, many believe that he continues to hold a grudge against the president for not acting immediately.
Even Mansoor Ijaz, on whose word the Supreme Court has formed a judicial commission to investigate the memo case, has said that the Chief Justice “owes” Nawaz Sharif.
Is this the case? Is the Supreme Court infected with the same corruption as the institutions that they are supposed to be judging? Is there one rule of law for the Chief Justice’s friends, and another, harsher law for those who he doesn’t like? Of course we can’t know what the justices’ true motivations are. But it doesn’t matter. The fact is, it looks bad. Whether the court is acting arbitrarily or not, it has the appearance of injustice. And this appearance is harming the faith of the people in the independence of the judiciary.
So what is the solution? How do we move beyond this mess? One option is called ‘recusal’. Justices who have personal history with those involved in the cases can voluntarily step aside for those cases and allow a neutral judge to sit in their place. This regularly happens in courts all over the world, and is seen as a shining example of the honesty and integrity of the judges who voluntarily recuse themselves from cases in which, even if they have no intention of acting inappropriately, there is a possibility that their involvement could give the appearance of being unjust.
A judiciary is an institution, not an individual. When the two become mixed up, then the appearance of individual corruption can have a devastating impact on the ability of the institution to be accepted as independent. And once a court has lost the faith of the people, it is very hard to regain.