Role of Judiciary in Pakistan - By: Munir M. Hasan, Ph.D.

In the last a few months some serious incidents have taken place in Pakistan. Most recently, Mr. “ten-percent” and later Mr. “cent-percent” has been acquitted of the charges of corruption by a court. The name of another Don, Dr. Asim, has been removed from the Exit Control List (ECL) on the order of the court. A bit earlier, Ayan Ali’s name was also removed from the ECL. She has already gone out of reach of her accountability and enjoying her freedom abroad. In fact, there is a big list of the persons well-known for their mega corruptions from every walk of life who have been dodging the accountability procedures, but Pakistani naive courts were unable to take any punitive action against them.

The case of “Godfather” and head of “Sicilian Mafia” is very interesting. Although sufficient evidences were available to punish him and send him to jail after the investigation done by a Joint Investigation Team (JIT), he has only been disqualified on account of violation of election rules. His corruption cases have been referred to an agency which has already been declared “Deceased” by the Apex Court. What miracles a dead body can do, it is known to everybody. This “Dead Body” has refused to put the name of “Godfather” on ECL and the “Godfather”, with full official protocol, has gone away. Even if he comes back, he will have the privilege of escaping from accountability whenever he wishes. Even this simple action is sufficient to show how the events in future are going to take shape. The “Dead Body” will file friendly and unpresumptuous cases in the courts against the “Godfather” and he will come out innocent in the same way as “Mr. cent-percent” has been declared.

Soon, the better-half of the “Godfather” is likely to win the election of NA-120, willingly or unwillingly, and is likely to become the Prime Minister of Pakistan. If it so happens, then the “First Gent” of the Prime Minister will be back in the Prime Minister House with full powers and control, and all the expectations of the people of Pakistan hoping to see the end of corruption from Pakistan will be shattered. If it was to be done so, then my question is: why so much fuss was created in the first instance in the name of Panama Papers.

It is known to everybody that the corrupt ruling mafia in Pakistan has been amending the Constitution of Pakistan and making laws with a view to restrict the powers of Judiciary and protect their corrupt practices. They have also been appointing their accomplices in the senior-most positions so that they should safeguard the interests of the appointing authorities. They are paid unbelievably high salaries and are given other benefits as bribery so that they remain obliged and faithful to their masters. These cronies hide and twist facts, change the official records or even burn/destroy the records so that their masters are not caught. They even make arrangements to eliminate those who can give any evidence against them. There are innumerable examples of such instances. With these practices the Pakistani society has been converted into a lawless society, but the courts find themselves helpless and do not appear to take any notice of this situation.

The performance of the courts in Pakistan has never been exemplary. Large numbers of cases against the top corrupt elites are pending in the courts for years, rather for decades, and no decisions are being announced with the result that these corrupt people are continuing their illegal activities under the refuge of the courts’ stay orders. Although the rampant corruption is the order of the day, no corrupt elite has ever been punished by the courts. Of course, the courts have the excuse of saying that all the agencies in Pakistan are corrupt and the courts have to give decisions according to the laws and available evidences provided by the corrupt agencies. To me, this excuse is not acceptable. If the known criminals are playing foul games to harm the country, the courts should not sit helpless and it is their duty to take necessary steps to counter the strategies of the corrupt mafia. The courts, especially the superior courts have vast powers to rectify this situation. For example, any Constitutional amendment against the natural justice can be declared null and void by the Apex Court. As an example, under Article 50 of the Constitution, as many as 60 reserved seats for women in the National Assembly are given to the ladies as gifts to the political parties. This is a gift because these ladies are not elected by the people. This is fundamentally against the basic democratic principles. This and some other similar Articles of the Constitution can be declared null and void, but the Apex Court does not appear to be interested.

The Apex Court, under Part II of the Constitution, has vast powers in the Fundamental Rights of the people, and the laws against fundamental rights of people can be declared against the Constitution. For example, elected Assembly members have the position as slaves of the parties and they are liable to lose seats if they disagree with their leaders. So, the members are forced to follow the policies of the party and they cannot disagree on any matter. If the purpose is to discourage Floor-crossing, then other respectable laws can be enforced in line with the laws existing in other civilized countries of the world.

The most common and important part of this scenario is the distribution and misuse of public money. The public money is being distributed as bribery to the Assembly members in the name of development funds which are misappropriated openly. This is being done in violation of the rules and procedures of spending public money. While the people do not have basic facilities of education, health and are facing lack of civil amenities, many unnecessary mega projects are announced and are being executed at exorbitant costs. Mega trading contracts with foreign firms of the order of billions of rupees are being approved against the established rules at much higher costs to ensure big chunk of kickbacks. Huge bank loans are taken with a view not to return the same. The interesting point in this matter is that these well-known loan defaulters even contest the elections and the Election Commission or any court cannot disqualify them from contesting elections. In fact there are innumerable examples of misuse rather corrupt practices in spending public money at all levels. All of them cannot be quoted here in this small article. These need books to be written on it. The proper spending of public money is the fundamental right of the taxpayers, and any law or administrative order for the misuse of public money need to be declared against the Constitution. However, the surprising fact is that, while some suo motu actions have been initiated even on the possession of some bottles of wine, the courts are keeping quiet on these open misuses of public funds.

Another aspect is the misuse of authority by the ruling elites in appointing corrupt people on the constitutional, statutory and other important positions. Those who should have been in Jail for their corrupt and illegal activities are occupying the key positions in the bureaucratic set up. The case of the incumbent chairman of National Accountability Bureau (NAB) is an illuminating example. He was already known to be a corrupt person even before his appointment, but the courts did not do anything against his appointment. The appointments of known corrupt persons can be declared illegal on the basis of the past records of the appointees. This is not a new suggestion. In fact, in some earlier selected instances the appointments of such people have been declared illegal by the courts and even the chairmen of the NAB have been removed on one excuse or the other. However, this time, no action has been taken against the incumbent chairman. The more strange point to note is that, after declaring NAB as “Deceased” in Panama Papers case, he is allowed to complete his tenure “respectably” and all the Panama Papers cases have been referred to the same “Dead Body” for making references knowing well that the investigating agencies headed by the corrupt people can never bring out judicial results.

The miracles do not happen spontaneously. People, especially the men in authority, have to make efforts for getting good results. It is a law of the nature. In Pakistan the ruling regime is so corrupt and powerful that it can make laws to spread corruption against public interests. The corrupt regime has been taking liberty to do all types of corruption for their personal benefits against the interest of the country, and the investigating agencies in Pakistan under the patronage of the ruling class are so bold that they can shape references to help their corrupt masters. In this situation if no extraordinary steps are taken, then it will not be possible for the country to survive respectably. In such circumstances it becomes the duty of the judiciary to take necessary, rather unusually bold steps, within the constitutional framework, to stop these corrupt practices. They are the judges not only in the eyes of the people, but also they are accountable to Allah for imparting absolute justice. If with the continuation of the corrupt policies the country suffers a tragedy then not only the corrupt ruling regime will be responsible for that disaster, but also the judiciary will be equally responsible for not taking necessary steps to rectify this situation by punishing the culprits. Now is the time to take actions in the best interest of the county instead of giving false hopes to the nation.

Posted on Sep 08, 17 | 12:21 am