Matters of morality

Soon after the short judgement of the Supreme Court on the issue of NRO that it was contrary to the equality guaranteed by the 1973 Constitution of Pakistan and that all the cases, disposed of because of the controversial Ordinance stand revived, it was generally suggested that all those politicians occupying public offices whose cases were revived due to this decision, should resign.
The spokesman for the President of Pakistan immediately responded that he would not resign due to constitutional immunity provided to him under Article 248(2) of the Constitution. This article very states that "No criminal proceedings whatsoever shall be instituted or continued against the President or a Governor in any court during his term of office."
The Prime Minister also made a public statement that there was no need for the President to resign on morality grounds only as he already enjoys constitutional immunity. For others, it was pleaded that they would not resign till the full decision of the Court is announced.
Not only has this official position taken by the government surprised sections of civil society and intellectuals alike, it has given birth to fears that the government may not implement the Supreme Court verdict in its letter and spirit and may result in the collapse of state institutions. It has also generated a heated public debate.
The term "morality" can be defined to refer to a code of conduct put forward by a society, a group or accepted by society's own behaviour. It is a system of general principles and judgements based on various cultural, religious, and philosophical concepts and beliefs acceptable to society. When a society conforms to these concepts, these become standards of morality.
It is not essential that these sets of principles are always binding upon individuals unless these are enacted by the representative lawful authority of that regime. The standards may change from time to time with the changing values of society. There are several examples that demonstrate the changing values over a period of time.
In the United Kingdom, the Family Law (Scotland) Act 2006 reformed the law of divorce and gave cohabiting persons some protected rights, which were not there before. The Civil Partnership Act 2004 made provision for same-sex partners to register their civil partnerships and as a consequence enjoy a number of property rights.
This too was unheard of earlier. Similarly, the Gender Recognition Act 2004 also allowed persons to choose to be male or female irrespective of their sex. In fact the standards of morality are improved day by day especially for ruling class.
These are few recent examples that reflect that changing values within society necessitate the introduction of laws that should reflect the moral values of societies at a particular time. If a set of moral principles is enacted, then it becomes a law and breach of it becomes an unlawful act, punishable under the law of that regime. Law is definable as a system of rules that directs our activities of day to day life.
These are meant to control social conduct, and the different methods adopted to enforce these rules to distinguish these from morality. Why some rules should be given the force of law is an arguable point. Law certainly is not the same everywhere. In English law, adultery with consent may not be punishable but in Islamic law adultery is a very big crime.
In ancient Greece, a man who seduced another person's wife could face a claim for compensation, since he violated the property rights of his lover's husband. Thus different laws in this area reflect different religious or moral standpoints. This cultural dimension of law is important in developing our own understanding of why particular legal rules have developed.
One of the most obvious and central characteristics of all societies is that they must possess some degree of order to permit the members to interact for sustained period of time. Different societies have different forms of order. In civilised societies, law plays an important part in the creation and maintenance of social order. We must also understand that laws are not the only means to maintain order and order is also not solely dependent upon law.
The public statement of Prime Minister Gilani in this context has given an impression that the government maintains a soft stand on these allegations, which tantamount to lowering our standards of state governance. Instead of strengthening the rule of law and ensuring high standards for state governance, we ourselves have decided through our own actions to lower standards of morality that have already been set and accepted by the comity of nations.
This ultimately challenges the supremacy of rule of law, as immoral acts strongly militate against its philosophy. Under the current circumstance, how leaders can claim themselves as trustworthy if lacking on moral grounds. A tainted image on morality by our leadership may drag us into isolation in the league of nations. Most of the allegations levelled against politicians, businessmen and bureaucrats were related to corruption and kickbacks.
These acts are not only immoral, but also unlawful. All segments of society, whether they are businessmen, generals, politicians or bureaucrats and even those people appointed to manage state-owned entities have been found to have plundered wealth through illegal means. If we have seen politicians receiving kickbacks, businessmen also defaulted on their loan payments.
The senior management of state-owned entities also plundered wealth through illegal means. We see examples of such institutions everyday in electronic and print media. Immoral acts whether these were committed yesterday, or would be committed tomorrow must be condemned in strongest possible terms as corruption has badly crippled our economy. The state has become international basket case.
We are desperately crying for financial aid, but we are not showing any willingness to put our house in order. We have no courage to arrest corruption due to a serious lack of public accountability. The government has lost public confidence due to these unchecked wrong practices. Those who committed crimes years ago went unpunished.
This practice should be effectively checked to restore public confidence in our institutions. It has been frequently argued that one is "innocent until proven guilty." It has become a convenient excuse for politicians to shun morality on this pretext because investigations can always be manipulated and influenced. Moreover, long judicial delays would ensure that even the worst criminal actions are not be decided for decades as has been the case in Pakistan.
There is a very thin line between immoral and unlawful acts. If morality is not codified and enacted, violation of morality rules generally do not desire punishment in whatever form it is. But if it is enacted, it becomes an unlawful act and is considered a punishable act by law. Unfortunately, those who were pardoned through NRO were accused of acts that violated various laws of the land.
Over 8000 people committed, though allegedly, unlawful acts in one form or another and therefore, they should be accountable for their acts. There are so many instances world-wide where several important personalities that were holding public offices had to resign from their positions only on morality grounds even though they were neither convicted nor proven guilty at the time of their resignations and the nature of those acts mostly did not come under the category of unlawful acts.
In UK, Sir Thomas Dugdale, a minister in 1947 resigned, even though he was not at fault personally. It was done in order to uphold the integrity and reputation of the then government. British Home Secretary Blunkett resigned over influencing the Home Office to grant permanent residency to her Filipino servant, even though he had coincidentally instructed that all previous applications should be cleared soonest.
Recently, the Danish prime minister resigned due to mental illness and gave his reasons to the public. Israeli President Moshe Katsav was forced to resign on rape allegations in 2007, just two weeks before his seven years term was expiring. Similarly, Israeli Prime Minister Ehud Olmert was also forced to resign on allegations of accepting cash bribes from wealthy political supporters.
In India, former BJP leader Jaswant Singh had to resign as the chairperson of parliament's Public Accounts Committee (PAC) on grounds of morality because he had refused to withdraw his controversial book. As a result of Mumbai attacks, the then Home Minister of India and the then Chief Minister of Maharashtra had to resign on grounds of morality.
It is being generally argued that the demand for resignations is PPP-specific and is not justified because unlawful acts committed by Sharifs and Chaudhrys during their regimes were also not brought before the courts. No one is above the law. Who has suggested that these two groups should not be made accountable and should not be tried for any unlawful acts committed by them?
If there are cases of unlawful acts committed by these two, these must be opened against them and they should also be brought into the accountability net. It is possible for the present government to initiate this accountability process in superior courts and ensure that rule of law is implemented in its letter and spirit.
It does not matter if it is expensive or time consuming to do so, as grant of condonation for unlawful acts would undermine the implementation of rule of law within the society. We have ample examples in various civilized countries, where very costly and time consuming court cases were initiated to punish those who committed white collar crimes in corporate sectors. This is essential to send a strong message to "would-be offenders".
We have neglected this aspect of morality. Let us assume for the sake of argument that if we forget the past and start a new chapter of political reconciliation in Pakistan, will it guarantee that those who are presently tainted with allegations and occupy important public positions will not commit the same unlawful acts. The last two years of governance have negated this perception. In fact it is being said that it will further enhance and legalise corrupt practices.
Our politicians are required to strengthen the rule of law by stepping down from their public offices till they get clearance certificate from the courts relating to the accusations that have been levelled against them as Lord Denning in Gouriet v the Union of Post Office Workers [1977] stated 'be you never so high the law is above you'. The writer is an LLM (Corporate Law) Northumbria and a fellow member of Chartered Management Accountants UK. He wrote this article before the Supreme Court announced detailed judgement in the NRO case on January 19, 2010.