Impartial accountability of all

Accountability is a key component of effective governance. It not only strengthens the foundations of democracy but also helps towards improving efficiency of government operations. Likewise, transparency provides essential and necessary oversight over state functionaries—it grants access to public in all matters of public importance for accountability and constructive criticism and productive analysis. Right to information is an inalienable fundamental right of every citizen of Pakistan under Article 19A of the Constitution of Islamic Republic of Pakistan [“the Constitution”].

Selective accountability, as opposed to comprehensive, across the board and unbiased approach, weakens the political system and key state institutions. Such one-sided accountability leads to an all-pervasive culture of corruption and nepotism. These elements, once ingrained in any polity, carry far-reaching consequences, negatively impacting economic well-being of society.

They hamper fair competition, diminish public trust, and deter foreign investment—collectively hindering the country’s growth and prosperity. Thus, no one can undermine the importance of impartial, effective and impartial accountability.

Pakistan has long been struggling to establish a desirable accountability system. For decades, the rule of fourmilitary dictators, witnessed so-called “stringent” accountability measures that eventually only tainted the country’s financial system and distorted its democratic dispensation. During the erratic terms of civilian governments, controlled or hybrid, the nation has suffered immensely due to the influence of those who matter in the land.

Undoubtedly, the entire credit goes to Zulfikar Ali Bhutto for giving the nation the first unanimouslyadopted Constitution, the 50th anniversary of which was recently celebrated. It is important to recognize that 1973 Constitution guarantees equal rights to all citizens and explicitly prohibits any legislation that violate fundamental rights but it contains certain provisions specifically dealing with higher judiciary and armed forces.

For example, Article 209 of the Constitution provides for self-accountability of judges of Supreme Court and High Courts. It is commonly asserted that this excludes all other laws of accountability for judges.

Justice Syed Mansoor Ali Shah, an outstanding legal mind and judge of the apex court, in a recent decision (dissenting note) in Constitutional Petition 21 of 2022, eloquently clarified and elaborated thepurview of National Accountability Ordinance, 1999 and Prevention of Corruption Act, 1947, for judges and generals. Henoted:

“….The other holders of public offices, in addition to facing the civil consequences of their corruption and corrupt practices, are to suffer criminal punishment of undergoing the sentence of imprisonment andthe forfeiture of the unaccounted-for assets, while the members of the Armed Forces and the judges of the constitutional courts would go scot-free in this regard.

After removal from the official position, they would be set free to enjoy the assets accumulated by them through corrupt means. Such reading and understanding of the observation of the Court would allow the members of the Armed Forces and the judges of the constitutional courts to be unjustly enriched and then allowed to retain this unlawful enrichment without any accountability, this would make the members of the Armed forces and the judges of the constitutional courts untouchable and above the law; any such reading would be reprehensible and revolting to the conscience of the people of Pakistan and bring the Court into serious disrepute.

We must, therefore, strongly shun the above generally professed opinion and be clear that members of Armed Forces and the judges of the constitutional courts are fully liable under the NAB Ordinance, like any other public servant of Pakistan.”

Although the above is a minority opinion, it carries a lot of weight, notwithstanding the fact that the majority judgement struck down the amendments made in the National Accountability Ordinance, 1999 restoring all the discharged cases. The Intra Court Appeals No. 2 and 3 of 2023 filed against the judgement passed in Constitution Petition No. 21 of 2022, were recently heard by a five-member bench of the Supreme Court.

The bench, after hearing on October 31, 2023, held: “On 11 October 2023 this Court had announced the order in Constitution Petition No. 6/2023 etc., however, detailed reasons have not been given as yet. Therefore, it would be appropriate to fix these appeals after the release of the detailed reasons in the said cases. However, to save time notices be issued to the respondents….”

As the case is currently sub judice, proprietary demands silence in speculating about its outcome but bona fide concerns arise as we have suffered huge losses due to the selective nature of accountability. Throughout our history, there are numerous instances where individuals in high positions of authority have wielded their unfettered power to serve and suit their inert desires, ultimately resulting in irreparable damage to the entire system. In recent times, starting with Chaudhry Muhammad Iftikhar up to Umer Ata Bandial, a pattern has emerged, where honourable chief justices of the apex court have faced criticism for alleged misuse of powers under Article 184(3) of the Constitution.

Unfortunately, we have seen a sitting chief justice, openly soliciting money from litigants for the dam fund in his court, inspecting hospitals, attending political gatherings, actively participating in political campaigns, all the while using the media for self-projection. These actions clearly contravene the judge’s code of conduct, which explicitly mandates that men in robes must religiously avoid any situation that could potentially sway their opinions or actions in any case due to personal indulgences, whether direct or indirect in nature. Despite these blatant violations of the code of conduct, no disciplinary action has ever been taken against those who adjudge others and punish even the elected public office holders, leaving the door open for persistent occurrences in the future.

The surge of judicial activism (in fact overreach), purportedly in pursuit of an independent judiciary, has led us to a point where the citizens of Pakistan have lost faith in the country’s judicial system. Two former prime ministers are currently struggling to secure justice, each claiming to be a victim. Even though the Supreme Court has addressed election disputes, political parties and the public remain skeptical of a free and fair electoral process.

The prospects of achieving political stability, necessary for stalling economic meltdown, under the prevailing circumstances, appear bleak and distant. The only viable solution to attain a stable and prosperous Pakistan, as underscored in Mr Justice Mansoor Ali’s dissenting note, is to establish an all-encompassing, impartial and effective system of accountability that extends to all,even the sacred cows. Without such a system in place, we will continue to further suffer erosion of the principle of separation of powers at the hands of those who control the state apparatus, rendering our aspirations for a prosperous Pakistan unattained or even unattainable.

(Huzaima Bukhari & Dr. Ikramul Haq, lawyers and partners of Huzaima, Ikram & Ijaz, are Adjunct Faculty at Lahore University of Management Sciences (LUMS), members Advisory Board and Visiting Senior Fellows of Pakistan Institute of Development Economics (PIDE). Abdul Rauf Shakoori is a corporate lawyer based in the USA and an expert in ‘White Collar Crimes and Sanctions Compliance’)

Copyright Business Recorder, 2023