The 17-member full court declared the NRO to be an instrument void ab initio being ultra vires and in violation of various constitutional provisions. The said Ordinance was considered to be against fundamental rights and an effort to legalise corruption in our society. It was such a bad law that even those who benefited, did not support it.
As per the short decision delivered, all cases of NRO beneficiaries stand re-opened and the beneficiaries will defend themselves before the competent courts for allegations levelled against them. The reopened cases are for alleged corruption, money laundering, misuse of power and other culpable offences involving property and physical damage. The outcome of the cases may not result in convictions as desired by many, the cases belong to those who are in a position where influence may be exerted upon prosecution to affect the outcome of the judgements. This was reflected in a press statement issued by the Prime Minister asking the questioner that who would arrest the Home Minister who arrests others.
Therefore, there has been general demand that those who have been accused, benefited from NRO and currently hold important positions in government, should resign on moral grounds to ensure impartial decisions. In response, the beneficiaries of NRO argue that they are only accused in false cases that were motivated politically, nothing has been proven against them, and therefore, there was no reason to resign. The beneficiary's point of view carries weight, at least, if looked from the legal perspective. So it seems difficult to reject both points of views. It remains a debatable issue if it was due to government's unwillingness, the prosecution's incompetence or outdated judicial systems and procedures that delayed the outcome of these cases.
However, there is no denying that the personalities involved in these cases were politically strong, hired expensive lawyers, absented from courts on various excuses and desired wilfully that the cases should not progress in courts. The prosecution and the judges also failed in their duty by not concluding these cases during this period. We must analyse the reasons why our judiciary did not defeat this strategy. This may reflect weaknesses of our judicial system that may have allowed the misuse of the present court procedures.
Needless to say, that the principle of rule of law itself was rejected in Pakistan on the premise of maintaining law and order in the national interest. To this effect, the rule of law was regarded by officials and bureaucrats as an obstacle to the country's development and social stability and was at times superseded by way of executive orders. The past governments were also reluctant to provide the basic financial and other resources for the proper functioning of law enforcement agencies and even the judicial system. The appointment and promotion of judges, as well as other administrative processes, were used as a leverage to prevent them from acting independently. This meant that the judicial system could not work effectively due to resource limitation.
The primary institutions responsible for the administration of justice, such as the police, prosecution and judiciary are still facing significant problems, even after the creation of the provincial Criminal Prosecuting Services a few years ago. One major obstacle is lack of independence to perform their duties with competence and integrity. This requires hiring of competent people to perform their duties with honesty and integrity. Attempts are frequently made by political authorities to manipulate institutions for their own interests, thereby affecting their objectivity and impartiality. It is not possible to implement rule of law, if appointments are made on the basis of political and party affiliations.
Prosecution mechanisms have fundamental problems too that affect their upholding of the rule of law. The prosecution is directly controlled by the State, staff is recruited on the basis of political and party affiliations, the competency of staff is questionable, and the remuneration and reward system is not linked with the outcome of successful convictions. There are procedural obstacles as well, because the current judicial system hardly distinguishes between white-collar crimes and other indictable offences.
This distinction is important as both these offences require specialised expertise to prosecute successfully. White collar crimes desire expertise in financial, accounting, banking and other laws relating to fraud, money laundering and capital market manipulations, whereas the later requires conventional criminal investigation techniques. There have been hardly any convictions in the field of capital market manipulations and other crisis in the financial sectors. But if we look at the performance of agencies operating under other different regimes like the Serious Fraud Office (SFO) of UK that deals only with the investigation of serious and complex frauds. We find that it has successfully investigated several allegations of fraud, embezzlement and market manipulation in combating white collar crimes. It investigated into the collapsed Icelandic banks that operated in the UK, where, it was suspected that loans were made to a number of "high-profile individuals" Fraud prosecutors compiled a dossier of evidence in the bribery case against BAE System that was accused of paying bribes to win contracts in several overseas countries. It also launched criminal investigations into a London-based hedge fund that collapsed. It also started criminal investigation into Dynamic Decisions Capital Management, amid concerns that some of its funds lost large amounts of money. It was the same agency that prosecuted 71-year-old Madoff, who was sentenced to 150 years in prison for irregularities. These are just a few examples of a complex nature of the investigations by this office that required high expertise to convictthe offenders. Since fraud is a document-based offence and since fraudsters, their victims, banks and others are often unwilling to discuss what happened, SFO used special investigative powers under Section 2 of the Criminal Justice Act 1987(UK), whereby individuals were forced to furnish information, answer questions, produce documents and give explanations for them that were successfully used in those cases.
In Pakistan, the National Accountability Bureau (NAB) was set up in 1999 to detect, investigate, prosecute and for the speedy disposal of cases involving corruption, corrupt practices, and misuse/abuse of power, misappropriation of property and kickbacks, and to recover bank loans from those who have defaulted. The NAB was headed by a person having political affiliation with the ruling party. Therefore, its role remained limited due to its partial status. It conducted investigations on a selective basis and mostly against those people who opposed the ruling party. It did not hire a competent staff to prosecute serious fraud cases that required extraordinary expertise in its investigation. Its prosecution teams were not equipped with the necessary legal powers to force the collaborators to divulge the desired information, as is available to the SFO. Therefore, it took years to investigate fraud and money laundering cases without any noticeable success. Therefore, NAB's performance has been impartial, if judged on comparative grounds with other investigating agencies under different regimes.
There is no procedure in place to allocate cases to courts on a fast-track basis so that the evidence is not destroyed or witnesses do not disappear. The system does not distinguish between an ordinary indictable offence and a serious white collar crime. If police department initiates and prosecutes the accused in special cases of fraud and embezzlements and is responsible to place the necessary evidence before the courts for successful conviction, then this seems an uphill task for police and prosecution that are deficient in techniques, expertise and investigation abilities to handle high-profile cases of this nature, which results in either delay or acquittal.
In Pakistan, the conviction rate is well below 12 percent as per the latest statistics. In order to ensure that rule of law prevails, the conviction rate within Pakistan must improve in line with the rest of the civilised regimes. In Japan, over 99 percent convictions have been recorded, in the UK 90 percent convictions in the Crown courts and 98 percent in the lower courts, 85 percent in Australia, 85 percent in the US federal courts and 87 percent in the state courts, 37.4 percent in India, and 39 percent in South Africa. The high conviction rate is due to an ongoing legislative changes being introduced by these regimes to update their Criminal Prosecuting Services and judicial systems, in line with changing needs of their societies.
If we get any guidance from the British judicial system that is considered more in line with our system, the British government enacted the desired legislation to ensure that justice should prevail at all cost. As a result of the enactment of the Prosecution of Offences Act 1985 (UK), the separation of prosecution from policing was ensured and that has been an important step forward to strengthen the concept of rule of law, to ensure speedy trials and to reduce chances of miscarriage of justice within the system.
To ensure the rule of law and an effective and credible judicial system, public prosecution service should focus on protecting the public, delivering justice and supporting victims and witnesses. A reliable public prosecution should ensure that the system delivers fair, fearless and effective justice. The role of judges may safely be limited to legal oversight and final decision-making. The importance of a truly independent prosecution service has been emphasised.
In Price v Ferris (1994) New South Wales of Court of Appeal, where it was stated that, "Independence is a crucial attribute of a prosecutor. The use of prosecutorial discretion, when permitted in a particular jurisdiction, should be exercised independently and be free from political interference". It was also mentioned in the Assembly debate on 30 September 2009 (32nd Sitting) of European Union that "Prosecutors must be allowed to perform their tasks without interference from the political sphere. They must be shielded from instructions pertaining to individual cases, at least where such instructions would prevent an investigation from proceeding to court, strengthen the system of allocation of cases among the courts and to individual judges or sections within the courts, in such a way as to prevent any "forum shopping" by the prosecutor's office and the exercise of any discretion in this respect by the court chairpersons; abolish the possibility for ministers of justice to give the prosecution instructions concerning individual cases..." (Resolution 1685- 2009)
Conclusion:
The lack of effective investigation, inefficient prosecution and outdated judicial mechanisms can threaten people's rights to life and liberty: those who commit crimes, walk away freely. Therefore, despite the proclamations of fundamental rights guaranteed under Chapter 1 of our Constitution, people will be deprived of the enjoyment of rights in the absence of rule of law. Cases will not be decided in courts on timely basis. Corruption, frauds and misuse of power will not be checked within the society. The rule of law should not only be assured in the superior courts but should also be visible to be seen in the lower courts equally.
The lower courts need a complete overhaul, where appointment of magistrates must be carefully scrutinised and only capable people should be appointed. There must be a transparent system of appointing these local magistrates though an appointing committee as is being done in developed countries. The different methods may be studied to adapt the most suitable for our needs. There must be a credible institution for the appointment of judges. The judicial system should respond to the changing needs of today. It must respond to the questions of judicial delays where it takes years to get court verdicts and yet the culprits are not punished. Prosecution, as well as judiciary, must be held responsible for these delays. Any postponement of cases sought by the parties must carry penalties to speed up the judicial process.
(The writer is LLM. (Corporate law) from Northumbria University, United Kingdom.)
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