The Spirit, Not The Wording

When plunder becomes a way of life for a group of men in a society, over the course of time they create for themselves a legal system that authorizes it and a moral code that glorifies it.

Posted on 11/15/16
By Ikram Sehgal | Via ViewsWeek
The Supreme Court of Pakistan building in Islamabad, which is focus of one of Pakistan most significant legal case. (Photo by ImposterVT, Creative Commons License)
The Supreme Court of Pakistan building in Islamabad, which is focus of one of Pakistan most significant legal case. (Photo by ImposterVT, Creative Commons License)

Attempting to stall/derail the Supreme Court (SC) enquiry one of the petitioners wanted all 400 or so named in PanamaGate to be tried, Chief Justice (CJ) Jamali dismissed it as a “20 year plan”. Quoting Hazrat Umar (RA) setting a personal example by insisting “the accountability of the rulers is different from others”, the CJ noted that in a speech the PM had invited his own accountability. This was quite at variance in reality to what his PML(N) supporters in the Senate (and everywhere else) were trying desperately, to block any enquiry against Sharif and his family. An important observation by the SC, given prima-facie evidence of any hint of corruption by a holder of public office the onus for proving his (or her) innocence shifts from the prosecution to the defense.

 

The highest public officials have a special responsibility about maintaining exemplary integrity in the conduct of their office, morality of the process of governance must be beyond reproach. Neither they nor their relations/close friend can violate the laws of the land by using loopholes and smart accountants and/or do business, or involve themselves in any transaction, directly or indirectly with the public sector, and they must invite accountability not evade it.  Unfortunately personnel of state institutions responsible for accountability in various forms would never move against their superiors in the hierarchy for fear of retribution. Despite SC giving us a flicker of hope that this can change in Pakistan, our pessimism stems from that fact! As for evidence about PanamaGate not being available, the SC only has to request the International Consortium of Investigative Journalists (ICIJ) or their collaborators in Pakistan full access to the wealth of material on Pakistanis in PanamaGate available in their database.

 

Expressing dismay over NAB’s stance, that they could not initiate an investigation without having “prime-facie evidence” about an offense, the SC Bench called NAB’s reply ‘disappointing’ given Section 9(5) of the National Accountability Ordinance (NAO) that authorizes (or one can say, “obligates”) NAB to look into cases against holder of any public office who might be accused of amassing wealth beyond his/her known source of income. Tax evasion and flight of capital definitely fall within the purview of NAB which either turns a blind eye to illegal acts or opts for out-of-court settlements given the obnoxious “plea bargain” allowance.  The superior judiciary has inadvertently become an accessary to NAB honest officials being targeted because they have been successful pursuing the guilty. This exercise in intimidation is demoralizing NAB officials from functioning as per their mandate.

 

The Pakistan Bar Council (PBC) wants to discuss the scope, extent and nature of jurisdiction of the SC and whether it has jurisdiction for fixing the Terms of References (ToRs) by itself.  Can “officers of the court” who fight for upholding the rule of law on a daily basis ignore the morality of culprits engaging in corruption misusing the interpretations of the wording of the law?

 

Quoting DG Sindh NAB Col (Retd) Siraj Naeem, “Pakistan bears a loss of $133 million daily due to corruption”,  most of the accused escape accountability, their “untouchable” status directly proportional to their influence and wealth. The abuse of office for personal gain or exploiting it for self-aggrandizement is the norm in Pakistan, the common perception being that “the rule of law” is a figment of imagination. This is worse when law enforcement officials themselves violate the laws.  Recently a white SUV with tinted glass and a police mobile escort held up traffic on a service road in Karachi for nearly half a mile by coming the wrong-way on a “one way” road despite a “NO ENTRY” traffic sign put by the Karachi Police Traffic Department. The result was a traffic jam. On tracing the registration number of the SUV it turned out it belonged to the DIG Traffic!  It could be he was not in the SUV but given the police escort someone “important” certainly was.  This symbolizes those meant to uphold the rule of law breaking the law they have crafted themselves and supposed to implement, who will uphold the law? The IG Sindh, believed to be an honest officer, did not return my repeated telephone calls.

 

The wording of our “Law of Evidence” frustrates the spirit of justice which should be inherent in any constitutional system. Following the wording rather than the spirit of the law allows criminals and terrorists to get away with murder, many criminals from organized crime and political parties have been freed by the courts. According to Wikipedia, “When one obeys the spirit of the law but not the letter, one is doing what the authors of the law intended, though not necessarily adhering to the literal wording.” The courts may not be wrong in releasing suspects on the evidence at hand but in many cases the spirit of the law could have prevailed instead of strictly following wording of the law. In addition given negligence or absence of upholding the values and concept of democracy by our politicians, the burden has fallen on our superior courts.  Justice is denied if it allows the accused to take advantage and hide behind technicalities that could be exploited following the wording of the law.

 

The term ‘Joint Investigation Team’ (JIT) may be relatively new but is widely used in divergent forms of law enforcement investigative cooperation around the world. The team consists of judges, prosecutors, customs, law enforcement authorities, etc usually established for a fixed period to carry out criminal investigations and submit findings. Once a particular JIT has concluded its investigation, it is shut down.  The JITs final report should be treated as an Affidavit, their findings as legal. After considerable efforts at the legislative and operational levels, JITs regularly record operational successes in a whole range of crime areas across the world.

 

The PML(N) spin doctors are leaving no legal stone unturned in PanamaGate in a bid to protect the embattled PM and his family from incarceration. Every flaw, every loophole they find in the law will be exploited, every misinformation will be fed to the media, (mis)interpreting the wording of the law in the manner and the ways they deem necessary. Given the malaise that afflicts our money-driven parliamentary system, the SC has a tough task ahead of them.

 

A friend of mine sent me a Frederic Bastiat quote, “when plunder becomes a way of life for a group of men in a society, over the course of time they create for themselves a legal system that authorizes it and a moral code that glorifies it.”

 

The writer is Pakistan’s leading defense analyst.

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