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 21^st 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

23 November 2009