Governance sans justice
Huzaima Bukhari, Dr. Ikramul Haq & Abdul Rauf Shakoori
Rule of law, transparency, accountability and fair treatment to all citizens are considered as the fundamental principles of good governance deviation from which adversely impacts the law and order situation, hampers economic growth and causes political instability. While celebrating its 75th birth anniversary on August 14, 2022, Pakistan is facing grim challenges on all fronts related to politics, economy and social order.
We have a long history of extraconstitutional rules during which more than four decades were dominated by the military. Even in the aftermath of abrogation of the Constitution of Islamic Republic of Pakistan [“the Constitution”] and imposition of martial laws, none of the military rulers was ever questioned about his patently unconstitutional/unlawful acts by the higher judiciary and/or Parliament. Except in the case of judicial martial law by General Pervaiz Musharraf in 2009, all military interventions were approved by the apex court and later indemnified by the legislators through insertions of validation provisions in the Constitution. The natural outcome has been growing influence of unelected institutions in our polity in utter violation of the supreme law of the land—the Constitution. Unfortunately, the direct/indirect or “soft” intervention in government affairs by these institutions is increasing with every passing day making it a new norm—a sad and shocking legacy of last 75 years of Islamic Republic of Pakistan.
In every civilized society, the higher judiciary works as a custodian of the constitution and ensures fundamental rights of the citizens. However, in Pakistan the superior courts have always shown an indifference towards their constitutional duty. Our highest court emerged as approver to the extraconstitutional rules. Resultantly, the prerequisite of judicial oversight for enforcement of fundamental rights, good governance and supremacy of the Constitution remained compromised. The dream of implementing true rule of law has not materialized till today. Selective accountability and inconsistent interpretation of the Constitution and laws made thereunder continue to weaken governance, democratic values and rule of law in the country.
Those who stood against the above and raised voice for supremacy of the Constitution and upholding democratic values had to face the wrath of those who matter in the land. Since independence, various laws were promulgated by civil and military rulers for their personal gains and strengthening of illegal rules, e.g. Public and Representative Office Disqualification Act, 1949, Elected Bodies Disqualification Order, 1959, Presidential Order No. 16 and 17 of 1977 and then National Accountability Bureau Ordinance of 1999—just to mention a few.
The above laws and many other Acts, Orders and Ordinances, issued under the guise of implementing and ensuring transparency in government affairs, were used for selective accountability of politicians and civil bureaucrats alone. Since 1958 military rulers have systematically enabled corruption by extending favours to those who joined hands with them. The defiant, on the contrary, was subjected to face fake cases and arrests.
In the recent past, promulgation of the National Accountability Ordinance, 1999 [NAO 1999)], effective from 1 January 1985, and the subsequent establishment of the National Accountability Bureau (NAB) are hallmarks of misuse of authority. Though questions were raised about the legality of this law and lawyers challenged it on the ground of retrospective application in violation of Article 14 of the Constitution, the apex court rejected the same. Consequently; this law with some amendments, is still in force. Former Prime Minister, Shahid Khaqan Abbasi, in an interview claimed that ex-Chief Justice of Pakistan, Mian Saqib Nisar, allegedly sent him a message: “If you will try to amend this law, we are going to strike it down immediately”.
As regards performance of NAB, despite having the support of all institutions and unfettered powers to proceed against any person, it has miserably failed to achieve its prime goal of curtailing corruption. The recent ranking of Pakistan on the Corruption Perception Index (CPI) at 140th number is a charge sheet against NAB. Similarly, the Financial Action Task Forces’ Mutual Evaluation Report of, 2019 highlights NAB’s incompetence stating that in the last five years (2013-2018) it could obtain conviction of only one person. It also raises concerns about the understanding of NAB’s staff in applying money laundering laws/regulations/rules.
The Broadsheet saga is yet another continuous source of shame for NAB. It testifies to its incompetence and confirms lack of expertise in the relevant fields of investigation/prosecution. NAB has never been able to hire relevant experts for the required jobs. Employing inexperienced people and paying them high fees, are serious irregularities requiring independent investigation against the recruiting officials. Additionally, the Broadsheet agreement is a classic example of selective accountability—despite sharing the list of approximately 200 people, NAB was not apparently interested in the foreign assets of any person, except those of the Sharif family.
In 2017, the thrice-elected Prime Minister of Pakistan was disqualified by the Supreme Court on the ground of unwithdrawn salary, without having right of even one appeal against the order under Article 184(3) of the Constitution. Referring the matter to the NAB to file a reference in the accountability court against the family and appointing a monitoring judge, who was part of the original bench that announced the judgement, was a unique step in the judicial history of Pakistan. Moreover, the apex court specified timeline of six months to decide the cases. Interestingly, investigation by Joint Investigation Team (JIT), formed by the apex court, violated the powers conferred on it under section 21(g) of NAO 1999 in obtaining the documents against Sharif family.
It is pertinent to mention that while indicting the ex-primer in case of Azizia Steel Company Ltd Jeddah Saudi Arabia, Hill Metal Establishment, Jeddah, Saudi Arabia, and remittances, the evidence of his business connections before assuming office was overlooked. Yet, it is mentioned at page 4 of the judgement that he belonged to a business family. He has been a shareholder in few companies, established by his father and on page 6 of the judgement, a list of the companies is also given. However, while deciding the case, the plea of acquiring properties through inheritance was ignored and properties were evaluated on the basis of share received by the accused.
The strict criterion applied by the Supreme Court to convict Nawaz Sharif was not taken into consideration while dealing with cases of other politicians, namely, Sheikh Rashid vs Shakeel Awan and Hanif Abbasi vs Imran Khan Niazi. In case of the latter the Court accepted the money trail given by Imran Khan even after change of stance from his initial declarations. He took multiple somersaults regarding Niazi Services, its legal fees and income earned through playing county cricket. His submissions included a dubious letter of remittances, details given by his friend Rashid Ali Khan contradicting the previously submitted income tax returns. Despite all these shortcomings, the court was gracious and lenient to declare him “Sadiq” and “Ameen” (truthful and trustworthy). This is one of the numerous examples of selective justice allegedly made by the apex court.
Articles 62 and 63 of the Constitution enlist the qualifications and disqualifications for membership of the Parliament, respectively. The military dictator, General Muhammad Ziaul Haq, in 1985 amended these Articles to add new clauses to the existing criteria. These provisions contain subjective requirements of being sagacious, righteous and non-profligate, honest and Ameen; while to err is human as per universal recognition. Religious scholars and wise legal minds believe that such highly dignified adjectives like “Sadiq” and “Ameen” can only be attributed to the holy prophets and the pious only. These criteria cannot be substantiated easily and no one should have the authority to distribute certificates for and against them, especially the courts as they themselves have repeatedly failed to abide by the green book and defaulted against the oath they undertook while assuming charge of highest office of justice in the country!
Huzaima Bukhari & Dr. Ikramul Haq, lawyers and partners of Huzaima, Ikram & Ijaz, are Adjunct Faculty at Lahore University of Management Sciences (LUMS), members Advisory Board and Visiting Senior Fellows of Pakistan Institute of Development Economics (PIDE). Abdul Rauf Shakoori is a corporate lawyer based in the USA and an expert in ‘White Collar Crimes and Sanctions Compliance’. They have recently coauthored a book, Pakistan Tackling FATF: Challenges and Solutions