Judicial Self-Accountability
As is the custom of every military regime on coming to power, the Musharraf government initiated accountability across the board. In two respects the Musharraf’s benign “martial law” has remained totally different from those of his predecessors viz (1) martial law was not declared and (2) martial law courts were not used to dole out summary justice. To punish fiscal malfeasance, corruption and nepotism within the ambit of the law, the National Accountability Bureau (NAB) was established immediately within days of the failed civilian coup of October 1999. Exercising due legal process under the public perception of draconian military rule, NAB did excellent work under its first Chairman, Lt Gen Muhammad Amjad. Regretfully, Amjad, himself upright and honest, was not averse to cronyism. Some of these cronies, took good advantage of a counterproductive escape hatch in the NAB Ordinance, allowing the accused the facility of “plea bargaining”. That set a precedent for others for condoning white collar crimes like fraud, pilferage, etc, the crooked being released if a “significant” portion of that ill-gotten money was returned. The moral repugnance of a thief being let off the hook by returning a part of the stolen loot notwithstanding, the criminal/s also got to “whiten” their ill-gotten proceeds. This mechanism was used by some of the investigators of NAB to pocket a portion of that stolen loot.
Other than the misguided concept of “plea bargaining”, NAB’s potential also went horribly astray by viz (1) excluding serving superior judiciary and uniformed men from their preview, the premise being that a self-accountability system was in place and (2) by prosecuting all those politicians opposed to the military regime, the phrase “selective accountability” coming into the Pakistani lexicon. This undercut NAB’s credibility and reputation, and thereupon its effectiveness as an anti-corruption white-collar crime fighting entity. Having left the Army, and after working for three years to make a living, I transited to self-employment in doing business, arms and equipment being among the products I was promoting. Without paying bribes I was not going to get anywhere, at least that’s what my partner explained in elaborate hand-written letters which I have kept safe all these years. To quote him verbatim we would not get military contracts because I could not be trusted (by the recipient of bribes) to pay up since “I was an idealist”. From “evaluation” to “test and trials” to eventual “procurement” in the Armed Forces, quite a few were on the gravy line in the 80s. I soon got out of the “arms bazaar” and went into the “services sector”, vowing not to do my business with government, either military or civil. Breaking this rule of avoiding the public sector thrice (2 civil and one 50% civil), I suffered the consequences monetarily thrice. I will save the details for the book I am writing.
The military’s accountability system is flawed, the “court of enquiry” can easily be manipulated to suit the accused if he is a favourite. Conversely, it can also be used to railroad the innocent. Mostly it is employed as a cover-up and we see it happening event today “ad nauseam”, to quote, “in the national interest”. This is not restricted to the present incumbents or our Armed Forces, it was in place even in the British Indian Army, and is in fashion in varying degrees in every Army in the world. Even the vaunted justice system of the US Armed Forces could not really bring to book the senior perpetrators of “Abu Ghraib” despite the fact that the majority US rank and file in Iraq is blameless and wanted the guilty brought to book.
The superior judiciary under the present Chief Justice of the Supreme Court of Pakistan, Justice Iftikhar Chaudhry, is a pleasant surprise, not only in the legal profession, but the intelligentsia and masses of Pakistan. I believe that former Chief Justice Sajjad Ali Shah, a man I really respect, would have gone that route if he had not got embroiled in political confrontations. The judiciary at least in theory, conducts its own self-accountability through the “Supreme Judicial Council” (SJC). The superior judiciary’s inability to hold its judges and that of the High Courts accountable eroded the credibility of justice down the line. Justice was available, but at a price. Whether the price was paid in money or kind, when criminals function in the name of justice, justice becomes a crime. The Chief Justice and some of his colleagues are honestly activist, not in confronting the government for confrontation’s sake but in enforcing the rule of law for the sake of the poor, deserving people of the country. They seem to actually believe in the age old age, “Physician, heal thyself!”
On Nov 19, 2005, the SJC presided over by Chief Justice approved a procedure of enquiry against Judges of the apex and high courts. Taking cognizance or information from any member of public alleging impropriety or misconduct by a judge, the SJC now has the power to probe whether a judge is guilty or otherwise and could recommend to the President for the removal on misconduct. Simultaneously National Judicial Policy Making Committee (NJPMC) additionally approved provisions in the Code of Conduct setting parameters for conduct as judicial officers, in official or private life e.g. Judges should be God-fearing, law abiding, avoiding roaming in hotels and streets, remain courteous and polite, etc. Judicial officials are required to declare their assets on half-yearly basis, not approach higher authorities for favourable posting, promotion, etc, etc. More importantly if 75% of the judgments are set aside or reserved they will be considered inefficient and disciplinary proceedings initiated. If the Chief Justice is serious about his moves to clear up the judiciary, and I for one have no reason to believe otherwise given his conduct and demeanour on the Superior Bench uptil now, a lot of judicial heads will roll, and more power to His Lordship! The code of conduct for judicial officers should equally apply to NAB’s personnel, starting with the Chairman. They should not be allowed to play footsie with the rich, notorious and crooked or frequent the social circuit that makes them susceptible to favours in cash and/or kind.
We have a very corrupt judiciary, reputations count for nothing. Take our arbitration case, enthusiastically agreeing to a very “honest” former judge of the Supreme Court, known for his “principled stand”, as an arbitrator, we are now out of pocket Rs 130 million for making this major blunder. The shocking thing was to learn that this man was on the take, using one of his two sons as the go-between. Relying on the reputation of this “icon” and the “open and shut” nature of the case we refused to pay up as we thought it was a shakedown by a wayward sibling, and suffered Rs 135 million worth of consequences thereof. While we need to expose such people to the public, where does one get the evidence, except his “living beyond his means”? Nobody would stand evidence against Chicago mafia boss, Al Capone, the prosecutors ultimately got him on charges of “tax evasion”. On that premise we had the old scoundrel’s taxes checked, the former lordship charges Rs 2-3 million (or more) for each case (earning over US$ 1 million of in an international arbitration), guess what pittance he pays to the taxman? In our arbitration case among other things, a middle-aged female TV star was employed to charm the pants of this seventy-plus “icon”!
For people across a broad spectrum of this nation, belated perhaps, the Chief Justice’s activism to correct his flock is more than welcome. Bringing self-accountability into the apex and high courts will make the judicial process down the line answerable to the people for their misdeeds. Pakistan will then have taken the first step in living in the accountable environment promised to us when this country was created.
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