How Democracies Deal with Corruption

By Sadiq Saleem

Ending corruption is a noble and popular cause that has, in the past, been used in Pakistan to undermine democracy. As Pakistan’s Supreme Court vigorously adopts this cause with the support of a zealous media it is important to remember that the job of courts is not to do what is popular but rather what is judicious. Legal action against the allegedly corrupt must be taken without undermining the democratic system or overturning the mandate given by the people in a general election.

The Supreme Court declared the National Reconciliation Ordinance (NRO) that came into effect on October 5, 2007 ultra vires on grounds that it was discriminatory. That should restore the pending proceedings in various courts. But these proceedings should not become an excuse to overturn the mandate given by the people of Pakistan in the general elections of February 18, 2008.

 

The people of Pakistan knew that they were voting for NRO beneficiaries and the mere fact of someone being an NRO beneficiary cannot be held as justification for demanding the ouster of anyone elected by the people or their representatives. Only conviction by a court of law for a specific criminal act or wrongdoing should result in the ouster or resignation of any official.

The NRO is not the only discriminatory act from the past that should be the Supreme Court’s concern. The court has already declared Musharraf’s imposition of emergency on November 3, 2007 as an act of treason. Now it must also acknowledge that the overthrow of the elected government in a coup d’etat in October 15, 1999 was also treasonous. The constitution has no provision for the army chief becoming chief executive and if the Provisional Constitution Order (PCO) of 2007 was illegal and ultra vires so were earlier PCOs.

Similarly, the creation of the National Accountability Bureau (NAB) through an ordinance after the coup should be undone on the basis of the legal maxim of “fruit of a poisonous tree is also poisoned.” There is no constitutional basis for a corruption watchdog agency staffed by serving and former intelligence officers and headed in its initial years by a serving general for selective persecution of a military regime’s political opponents.

The Supreme Court would enhance its prestige by admitting that past PCOs and judgments endorsing martial law were acts of corruption. Zulfikar Ali Bhutto’s judicial murder should also be identified for what it was and struck off the law books. Hearings must be opened in pending cases such as Air Marshal Asghar Khan’s 1995 petition against the covert funding of the IJI by the national security institutions. The discriminatory treatment against the MQM between 1992 and 1999 must also be reviewed.

While the judiciary’s stand against General Pervez Musharraf’s Emergency has raised hopes about it as an institution one must not forget that in the past even the higher judiciary’s record was chequered. If twelve year old corruption cases must be reopened to establish the principle of non-discrimination why not call upon all beneficiaries of past PCOs to step down as well?

The judiciary cannot forever ride a wave of popularity backed by a media-driven frenzy. If the party that won the most votes barely two years ago can be said to have lost popularity there is no guarantee that the judiciary’s populist decisions will not start coming into question in the court of public opinion.

General Zia-ul-Haq managed the media sufficiently well to keep a lid on sentiment opposing the elder Bhutto’s assassination. But eventually the judges who gave the verdict themselves recognized that theirs was a political, not a legal, decision. Some day there will be a critical mass of judicial opinion that will recognize that it is not the superior judiciary’s task to determine, for example, the price of sugar.

To avoid the pitfalls of the past, why not allow the law to take its course without rocking the boat of democracy this time? Let the courts deal with corruption while allowing the elected executive and the parliament handle their respective spheres in accordance with the constitution. One can understand the frustration of those implacably hostile to President Asif Zardari and the PPP but they, too, should understand that democracy requires patience and howsoever much you might hate the elected leaders it is important to wait for their mandate to expire.

We face a unique situation in Pakistan where we accuse people of corruption and we want to skin them even without charges being proven against them. This time round it would be useful if we look at how other democracies deal with corruption. None of them have purpose built politicized accountability bureaus and none use elimination of corruption as a slogan to eliminate political parties or leaders disliked by the urban middle class of a particular region.

Across our eastern border, in India, no government has been removed from office without an election whereas no elected government has ever completed its term in our country. Even when Indira Gandhi imposed emergency rule and crossed the limits in the eyes of most Indians, her opponents and critics waited for the next election to oust her. There was media criticism but no campaign for removing her either through judicial activism or in connivance with some invisible establishment.

In May 2009 the speaker of the British parliament resigned over his role in a scandal about the exaggerated expense claims of Members of Parliament. Michael Martin is the first speaker to step down under pressure since a previous incumbent was forced out for taking bribes in 1695. But throughout the MPs expense claim scandal no one called for the resignation of all those charged with wrongdoing.

Each case was treated individually and was required to be proven individually. Prime Minister Gordon Brown, highly unpopular and with approval ratings in opinion polls even less than those of President Asif Zardari, continues in office and the British are waiting for the next election.

Indian Prime Minister P.V. Narasimha Rao (1991-1996) faced a huge corruption scandal after leaving office. It was alleged that in July 1993 when Rao’s government was facing a no-confidence motion Rao, through a representative, offered money to Members of Parliament belonging to the Jharkhand Mukti Morcha (JMM). One of those MPs, Shailendra Mahato, even turned approver in this case. In 1996 a special court convicted Rao and his colleague Buta Singh who was alleged to have escorted the MPs to the Prime Minister. However, Rao appealed to a higher court and remained on bail. In 2002 the decision of the special court was overturned – mainly because of the inconsistency of Mahato’s statements – and both Rao and Buta Singh were cleared of the charges.

In another case Rao along with other fellow ministers was accused of forging documents to show that former Prime Minister V.P. Singh’s son, Ajeya Singh, had a bank account in St. Kitts. Charged for this alleged 1989 incident in 1996 Rao was acquitted in 1997 for lack of evidence. Finally an England-based Indian businessman, Lakhubhai Pathak, alleged that he had bribed Rao along with his close associates, including Chandraswami, with $100,000 in order to be allowed to supply paper pulp in India. However, in 2003 Rao and Chandraswami were acquitted for lack of evidence.

Despite these charges Narasimha Rao did not spend one day in jail. He was able to obtain bail on each occasion, allowed to appeal to the higher courts and when he died in 2004 the Congress-led government of his former finance minister and now Prime Minister Manmohan Singh gave him a state funeral on grounds that he was never finally convicted. That, rather than the lynch-mob mentality advocated by some in our hyperactive media, represents the rule of law.

Another former Indian Prime Minister Rajiv Gandhi faced a huge corruption scandal. Rajiv Gandhi and several of his close associates and friends were accused of receiving kickbacks from Swedish company Bofors AB for winning a bid to supply India’s military with 155 mm field howitzer guns that eventually proved so effective against the Pakistani military during the Kargil war. The scale of the kickbacks was alleged to be of the tune of Indian Rs. 64 million. Rajiv Gandhi and the Congress party lost the elections in 1989 to a combined opposition which used Bofors as a slogan against the Congress administration. But the Indian courts waited for evidence and tried the case at a regular pace instead of joining the popular anti-corruption bandwagon.

Rajiv Gandhi died in 1991 and the Bofors case continued for years but none of his associates were ever arrested or put in jail. In February 2004 the Delhi High Court quashed the charges of bribery against Rajiv Gandhi and others but the case continued as one of causing wrongful loss to the Government. While he was alive, even though the charges of corruption remained, Rajiv was never arrested, never placed on the Exit Control List (ECL) and was accorded a full state funeral on his death. After his death his wife and children continued to be accorded the privileges and security which they were entitled to as the family of a former prime minister.

U.S. Congressman, William Jennings Jefferson of Louisiana, was accused of bribery by the FBI in 2006 but was re-elected later that year. In June 2007, a federal grand jury indicted Jefferson on sixteen charges related to corruption. Jefferson lost his seat in the elections of 2008 but was never ordered by a court of law to resign before final judgement on his corruption case, re-establishing the principle that the court of public opinion matters in democracy. In August 2009 Jefferson was found guilty of 11 of the 16 corruption counts and in November 2009 Jefferson was sentenced to 13 years for bribery. However, throughout the entire process, Jefferson was treated as innocent until proven guilty. He was not imprisoned during trial, was not forced out of office except by an election and was only sentenced when his guilt was finally proven.

To bring an entire government down on charges of corruption is a uniquely Pakistani phenomenon. To place your defense minister on the Exit Control List (ECL) as though he was a common criminal who is a flight risk again only takes place in Pakistan. It is the result of the anti-politician and anti-democracy mindset cultivated among Pakistan’s middle class by General Zia-ul-Haq and his successors. Zia’s use of corruption and immorality as the main planks with which to attack popular politicians and his constant reiteration that unless accountability (ehtisab) takes place elections cannot take place are his major legacy to Pakistani politics.

In Pakistan charging someone with corruption means that person is by definition guilty and suddenly loses all of his or her natural rights even though the charges have not yet been proven. This undermines democracy and constitutionalism instead of reinforcing it. We must expose and pursue corruption without undermining democracy, the key principle of which is respecting the mandate of the people.

 Sadiq Saleem is a businessman and analyst based in Toronto, Canada. Email: sadiqsaleemca@gmail.com

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Tags: corruption, NRO, Pakistan