Corruption, and the appearance of corruption

Justice Scales CorruptionCorruption 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?

Wrong.

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.

Court of Law? Or Political Theatre…

Supreme Court

The media is nothing if not predictable, and once again headlines are declaring a confrontation between the Court and the Executive. Once again the issue is the court’s NRO decision, and once again it appears to be a storm in a tea cup. In addition to the media circus, though, another point should be considered which is whether the judiciary’s myopic focus on cases against government officials isn’t actually undermining their very legitimacy.

Shahab Usto, a lawyer and an academic, makes this point in Daily Times.

More than 1.5 million cases are pending in the courts. In cahoots with an incompetent police, the lower judiciary in particular has utterly failed to render justice to the wronged masses. Due to the failure of the criminal justice system, the common man’s life, property and respect are eternally hedged to the discretion of powerful criminals and conmen. The hordes of land grabbing and criminal mafias are governing urban and rural life with impunity.

Yet, much of the flak is reserved for the government. The judiciary takes no blame for the slack rule of law. Unsurprisingly, on the 1-181 scale of the World Bank’s Business Index 2011, Pakistan stands at 154 as regards the enforcement of contract. This raises the question: who will come to invest in this country where commercial disputes are resolved in years and decades? Small wonder then that even local industrialists are relocating to other countries, even to Bangladesh and Sri Lanka, mainly due to the lack of protection to life and property.

In democracy, just as the survival and legacy of an executive hinges on its performance, the writ and independence of a judiciary also depends on its delivery. Remember, a delinquent executive and a discredited judiciary meet the same fate. People turn their backs upon them, making them fair game for the ‘third force’.

The NRO cases are decades old and getting older. There are not petitions being made over corruption in the present government, rather the courts are spending all their time on unresolved cases from the past – many of which are well known and even admitted to be politically motivated. Unfortunately, some still see them as useful political weapons. Imran Khan, for example, insists that charges against him and his arrest under Musharraf were politically motivated, but is unwilling to extend the same benefit of reasonable doubt to anyone else.

That’s not to say the NRO cases shouldn’t be resolved. Actually, they need to be resolved so that we can move on and stop dwelling in the past. If someone is legitimately guilty, they should be held accountable. But we should also be just as dedicated to clearing the names of the innocent whose reputations have been unfairly smeared for political expediency.

In the memogate case, it was declared in the media that Husain Haqqani would never return, that he had applied for asylum, that his wife was whisked away to Dubai…all lies. Actually, Husain Haqqani returned to Pakistan, turned over his Blackberry and demanded an investigation to clear his name. He’s shown no signs of leaving before any inquiry, so Nawaz Sharif’s petition before the court appears to be nothing other than a transparently political move. Sure, it’s hardly surprising that Nawaz would make this move – after all, he’s just playing politics which is his job – but we should hold the High Court to a higher standard.

No one should be above the law, that is true. But that does not mean that the courts can act on a whim. Just as it tears away at the legitimacy of the judiciary to take a position that lets the guilty off the hook, so too does it tear away at the legitimacy of the judiciary when it takes positions that appear to be motivated by political agendas such as allowing ‘witch hunts’ priority over the dispensation of blind justice. The judiciary needs to find a more sensible balance between high-profile cases that are popular with the media and resolving the cases that have an immediate impact on the day-to-day lives of ordinary citizens.

So long as the High Court is seen as a theatre of political drama instead of the neutral application of law, whether it is protecting or attacking officials it will be seen as illegitimate in the eyes of the people. The Supreme Court is supposed to serve as a model for the lower courts. If the common man is ever to find justice, the lower courts must have an example to follow of a responsible and objective High Court, not a political theatre.

Mad ‘Sacred Cow’ Disease

Chief Justice Sacred CowAs I was thinking about the vilification of Marvi Memon for daring to suggest that maybe we should get the facts before we construct a shrine to Dr Aafia, it started to occur to me that part of the reason that it’s so easy to attack Marvi Memon is because she is a politician. We love to vilify them. But there is another group that is off limits for criticism – judges.

The Supreme Court has been highly political over the past few years, taking suo moto notice of all sorts of political cases as if there were no other issues in the country. The judiciary seems to have realized its political power and the fact that its become a sacred cow. Unfortunately, the result of this mixture is Mad Sacred Cow Disease.

Take the sugar price issue. Labour and Manpower Minister Syed Khursheed Shah dared to say what everyone in the world knows, which is that commodity prices are determined by the laws of economics – supply and demand. Certainly the courts should protect open and transparent markets so that there is no price fixing, but instead the LHC decided to do some price fixing of its own. When this was pointed out, the judges didn’t get reasonable – they got MAD.

“This court always welcomes healthy, constructive and fair comments on the merits of the decisions in good faith and in temperate language, without impugning the integrity or impartiality of the judge and expects that unwarranted and uncalled for comments would be avoided because judgments are based on law and the Constitution,” the Supreme Court office said in a rare statement.

But what if we believe that the judges are acting without “integrity or impartiality”? We have no problem accusing everyone in the Cabinet, the National Assembly, the Provincial Assemblies…everyone down to a rickshaw driver…of being corrupt. But the judges are somehow off limits?

The Supreme Court said that it “is following the Constitution and has played its due role assigned to it by the Constitution and law”, but I looked through the entire constitution and have not found where it says that the judges should set the price of sugar. If someone can point out that clause to me, I would be much obliged.

The same can be said about the 2009 decision on the carbon tax. Again, the constitution appears to be fairly clear in Article 77 – and the Supreme Court set the constitution aside to come to its own determination.

Criticising the courts shouldn’t be controversial, especially if the court is going to choose to insert itself into controversies.

Setting sugar aside for a moment, consider the bigger controversy which is the NRO. Human rights activists and legal experts have roundly criticised the court’s behaviour in this regard. Remember what Asma Jahangir wrote in December:

While, the NRO can never be defended even on the plea of keeping the system intact, the Supreme Court judgment has wider political implications. It may not, in the long run, uproot corruption from Pakistan but will make the apex court highly controversial.

Witch-hunts, rather than the impartial administration of justice, will keep the public amused. The norms of justice will be judged by the level of humiliation meted out to the wrongdoers, rather than strengthening institutions capable of protecting the rights of the people.

There is no doubt that impunity for corruption and violence under the cover of politics and religion has demoralised the people, fragmented society and taken several lives. It needs to be addressed but through consistency, without applying different standards, and by scrupulously respecting the dichotomy of powers within statecraft. In this respect the fine lines of the judgment do not bode well.

The lawyers’ movement and indeed the judiciary itself has often lamented that the theory of separation of powers between the judiciary, the legislature and the executive has not been respected. The NRO judgment has disturbed the equilibrium by creating an imbalance in favour of the judiciary.

The judgment has also sanctified the constitutional provisions of a dictator that placed a sword over the heads of the parliamentarians. Moreover, it has used the principle of ‘closed and past transactions’ selectively.

It is not easy to comprehend the logic of the Supreme Court that in a previous judgment it went beyond its jurisdiction to grant life to ordinances — including the NRO — protected by Musharraf’s emergency to give an opportunity to parliament to enact them into law.

The situation becomes even more troubling when we remember that only a few weeks before the Chief Justice warned that no one should question the courts, he also stated that the courts will intervene in any state organ. This statement prompted Asad Jamal to ask an important question, then: “Who will hold the courts accountable?”

Granted, that the courts are there to protect the rights of the people when the executive transgresses its jurisdiction. Granted too, that it is the courts’ job to interpret laws and intervene in case they violate fundamental rights. But who will hold the courts accountable? Should they indulge in judicial excesses? Nobody is ready to raise this question in these times of judicial activism. Meanwhile, the courts may do well to follow the unwritten code of self-restraint.

We are a nation of laws, are we not? You can read any newspaper or watch any TV talk show on any given day and there will be some discussion of accountability for the police, accountability for ISI, accountability for politicians – why can we not have accountability for judges also?

We have already seen the disastrous results of a nation of generals. Let’s not make the the same mistake and try to fashion ourselves as a nation of judges. A dictator is a dictator whether he wears a crown, a turban, khakis or black robes. Pakistan doesn’t need any more dictators, and we don’t need any more sacred cows, either. That’s just madness.

Raza Rumi: Unpacking the governance debate

The following post was originally published at PakTeaHouse blog.

If the intent of the unregulated media and a recalcitrant establishment is to dismiss the government to achieve better governance then this is at best a delusional goal.

Recent weeks have witnessed a supercilious debate on how the current government’s misgovernance is a potent reason to boot it out. Governance is about decisions, resources and management of public affairs. The sad reality is that Pakistan’s media now controls and spins the public discourse on these issues. The popular media never wanted this government to begin with. Since 2007, it sided with the ‘clean’ and morally correct lawyers’ movement that presented an alternative to the corrupt politicians and shunned the 2008 election. First, it vilified Benazir Bhutto for making a deal with the Generals on initiating a transition towards a power-sharing arrangement. This was a classic worldview of the urban middle class, which has never been a keen participant of the messy electoral politics that brings rural politicians with fake degrees at the helm of affairs.

The second critical moment was the election of the President, which sparked an unprecedented media trial with stories (mostly unsubstantiated) of Zardari’s corruption. There was a strong alliance between the local and the global media churning out a thousand stories highlighting his insanity, fallibility and venality. This happened despite the full confidence expressed by Zardari’s party and its allies. A rare federal consensus over the election of a President was undermined and the media perception intensified how all the crooks stand together to rob the country once again.

Now the third moment in the aftermath of the floods has arrived; and the high-pitched voices against the politicians have reached their peak. The charge-sheet is long but, in a nutshell, states that the feudal politicians were inept in handling the July-August 2010 disaster and harmed the poor to save their lands. This is a simplistic conclusion that has emerged without proper inquiry and mainly through anecdotes from the urban anchors visiting rural victims and interpreting their anguish as a condemnation of the politicos.

Discussions around regime change have strongly articulated the displeasure of the unelected institutions of the state on ‘governance’. The media has faithfully reported that the Army is unhappy about the corrupt ministers still in office and the looming economic crisis. The Judiciary is perturbed, as its judgement on NRO remains partially unimplemented and key appointments reek of illegality. The perennial power-seeker class of politicians has started to reconfigure the political landscape while fringe parties like Imran Khan’s Tehreek-e-Insaf and the right wing Jamaat-e-Islami want to seize this opportunity for short term gains. The ever-ready crop of technocrats is also getting anxious due to the anonymous contacts being made by the invisible elements of the state.

This display of crass opportunism by Pakistan’s traditional elites is nothing new. Since 1947 (including that fateful year), they have cared little for the ordinary citizens. But the alarming aspect of our present dilemma is the way Pakistan’s much-touted free media has become an instrument in spurring political instability. The endemic problem with Pakistan’s governance is that regardless of the government in power, the state (if we were to include all the dominant classes in the wider definition) remains disconnected and disengaged with the citizens. What is more worrying is that the state no longer is a monolith as it has delegated the state’s monopoly powers to faith-based militant groups which are ready to exploit its increasing inability to ‘govern’.

With 20 million people still struggling to reclaim their livelihoods, entitlements (such as land), shelter and security, Pakistan’s establishment and its politicians are all but willing to do anything about it. It is therefore problematic to see a legitimately elected government preparing a summary on NRO cases for 34 out of 8,000 beneficiaries and the Supreme Court chiding it like an accused party. Or, to read about the panicky meetings of the PPP while the latter should be strategising about re-enacting the NDMA legislation or preparing a resource mobilisation strategy to rehabilitate the flood victims and reconstruct the damaged infrastructure.

Equally disturbing is to witness the saga of Courts in effect suspending new Constitutional provisions while they are expressly not mandated to do that; and placing abstract notions of people’s will above the Constitution. In a similar vein, the Army has a separate fund for flood relief and the elected Public Accounts Committee cannot be given the details of how and why a Rs 5 billion supplementary grant was given to the country’s premier intelligence agency.

The argument on misgovernance by a coalition government is bogus when unelected institutions of the state are unaccountable, non-transparent and unwilling to accept the oversight of public representatives. Until the Army budgets can be audited, and judges are appointed through parliamentary commissions and the bureaucracy is answerable to legislature, we will continue to swirl in a vicious cycle of political instability.

If the intent of the unregulated media and a recalcitrant establishment is to dismiss the government to achieve better governance, then this is at best a delusional goal. Pakistan cannot afford another upheaval and the recent signals by the Army that it wants stability are welcome. But then Pakistan is an unpredictable polity with a growing constituency for suicide missions. Strange times, indeed.

Raza Rumi is a writer and policy expert based in Lahore. He blogs at http://razarumi.com.

Musharraf: Swiss Cases Are False

In a stunning admission today, Pervez Musharraf admits in an interview with Daily Express that the Swiss cases and other cases against Benazir Bhutto and Asif Zardari were false cases that could be proven in neither Swiss nor Pakistani courts.

Former military ruler Pervez Musharraf has said that graft cases against slain PPP chairperson Benazir Bhutto and her spouse Asif Zardari in Switzerland’s courts were not proven.

In an exclusive interview with Daily Express, Musharraf revealed that a letter was also written to Swiss authorities during his regime showing displeasure at the lengthy trial.

He said the rounds of negotiations he held with Benazir Bhutto were always one-on-one.

He said people on TV talk shows make noises about NRO and talk incessantly about the deal even though they know nothing about the facts.

Replying to a question, he said his meetings with Benazir Bhutto in Abu Dhabi used to span three to four hours, and they were always one-on-one. Rehman Malik accompanied the PPP leader but did not participate in the negotiations.

He recalled that when in the first round of talks Benazir asked for abolition of 58-2 (b) “I refused point blank”. He said when talking about the cases instituted against her during Nawaz Sharif government, Benazir used to become misty-eyed.

The ex-president said that the cases against Benazir Bhutto and Asif Zardari were neither proved in Swiss courts nor in Pakistan’s, while both were acquitted in many cases.

He said he had written to the Swiss courts that their performance was even worse than Pakistani courts as they failed to decide the cases, “but the fact of the matter is that there was nothing in those cases”.

Precisely for this reason, Musharraf continued, he presented details of his talks with Benazir before his political friends, including Chaudhry Shujaat and Pervaiz Elahi. Among the points he presented included ending of cases against Benazir Bhutto and her spouse and setting aside the bar on becoming prime minister a third time.

The Chaudhry brothers, he said, reacted by saying that the cases be dropped but the bar on third-time premiership should stay or the Q league would lose elections.

Meanwhile, Interior Minister Rehman Malik has said there used be a concluding session on both sides after the meetings between Benazir and Musharraf and follow-ups by the nominees of General Musharf “and me in Dubai and London based on the minutes of the meetings drafted by Benazir and myself”.