Jan 18, 2010

Accountability for all

Asif Ezdi

The writer is a former member of the Pakistan

Foreign Service

It is not often that information ministers have something to say that one can agree with wholeheartedly. Kaira’s passionate speech at the inauguration of the Hafizabad Press Club on Jan 3 was one of those rare occasions. He said the PPP wanted a transparent system of accountability for all those who had plundered the national exchequer and that judges, generals and politicians should all be held accountable, not just the PPP workers and leaders.

Kaira was absolutely right in demanding accountability for everyone, without exception. The National Accountability Ordinance promulgated by Musharraf had exempted the sitting president and governors, military personnel (other than those who have held a civilian post) and judges from its ambit. The new accountability law presented to the parliament last April does the same. There was never any valid justification for letting them off in the old ordinance, and there is none for continuing this immunity in the new bill.

The ostensible reason for not making the accountability law applicable to a serving president and governor is that they enjoy immunity from criminal proceedings under Article 248 of the Constitution. But even if one accepts for a moment that this immunity – which is only for the duration of their incumbency – should be allowed to stand, it does not justify putting them above the accountability law. Because what it means is that a president or governor who misuses his office for personal profit does not commit an offence under this legislation and cannot be prosecuted even after he leaves office.

There is just as little justification for excluding military personnel and judges from the application of the anti-corruption law. The reason given for making an exception in favour of the military was that the military has its own system of accountability. But this is only half-true.

Military procurements, both within the country and abroad, provide plenty of temptations for kickbacks, but the only known recent case of a high-profile armed forces officer having been convicted is that of former admiral Mansurul Haq. His case was investigated and prosecuted by NAB, not by the naval authorities. Clearly, the navy’s internal system of accountability failed to catch him. Besides, the penal law of the land must apply equally to all, whether they are civilians or from the military.

That is also true for judges of the superior judiciary. The Supreme Judicial Council can only recommend the removal of a judge. It has no powers to investigate corruption cases, to sentence the guilty or order the return of ill-gotten wealth.

After having demanded accountability for all, Kaira quickly retracted his statement the next day. This is not surprising. The government’s priority is not bringing the corrupt to justice, but helping the accused, especially PPP leaders, evade justice. This is clear from the new accountability law and the government’s stalling in investigating and prosecuting old and new corruption cases.

In a TV interview on Jan 8, Gilani himself tried to defend Zardari against corruption charges. It was an excruciating performance. Gilani advanced clumsy excuses of the kind one expects from Taseer and Fauzia Wahab but which are unbecoming of a prime minister. He said that since the people knew about corruption charges against Zardari when he was elected president, it would now be an insult to the public for anyone to say that their decision was wrong. Such arguments by the prime minister are actually an insult to the high office that he himself happens to be holding. If his twisted logic is accepted, it would mean that anyone who gets elected stands cleared of corruption charges against him.

Gilani did not stop there. He said also that if the demand to probe loan write-offs was accepted, no one would be spared. But that is exactly what the people of Pakistan are clamouring for, Prime Minister. What is your problem with that?

And why, Prime Minister, has your government not ordered investigation into cases of alleged kickbacks paid to Zardari in the Agosta submarine deal, as reported by a French newspaper, and the land deal in which hundreds of acres of land in Islamabad were sold to him at a fraction of the market value? The press has been reporting about many other cases of alleged corruption by the high and mighty and those who are well-connected. But, strangely, the government’s own agencies are either ignorant about them or are trying to hush them up.

And will you please tell the public, Prime Minister, why documents in the Swiss money-laundering case implicating Zardari have been left in the custody of our high commissioner in London who is himself an accused in a corruption case? And what do you have to say to reports that the government is replacing NAB prosecutors with party loyalists who would be tasked to work for the acquittal of the accused, instead of their conviction?

The new accountability law that was introduced in the parliament last April is another sign that the government’s policy seeks not to fight corruption but to condone it. The government has yet to explain why an entirely new law was required in place of the NAB Ordinance. True, the ordinance was misused by Musharraf, as the Charter of Democracy asserts. But the answer to that would have been to amend the law in order to strengthen the independence of NAB, not to repeal the ordinance. It should also be brought in line with the standards of the UN Convention against Corruption, to which Pakistan is a party.

The fact is that under cover of a new accountability law the government has furtively introduced many corruption-friendly clauses. Under its latest version, pending corruption cases will also be tried under the new law, which is heavily tilted in favour of the accused.

The crux of the matter is whether Zardari will stand trial for corruption. He occupies the highest office of state and the number of cases in which he stands accused, as well as the amounts involved, outstrip by far those for any other individual. He has declared that his ministers and party members will now defend themselves in the courts. But he himself refuses to face trial and is taking shelter behind the constitutional immunity enjoyed by the president.

It is clear that the accountability process will border on a farce if the star performer does not feature in the show. It will also be a travesty of justice if the small fry get caught in the net but the biggest of the big fish escape. That will only discredit the political system in the eyes of the public and invite ridicule and contempt for our institutions. With Zardari mired up to the neck in corruption cases, his presidency has become a huge liability. The country is being distracted from focusing on the many urgent external and domestic challenges left by the Musharraf dictatorship and exacerbated by mis-governance and non-governance during Zardari’s time in the seat of power. But his exit must be brought about through political process, not by disqualification under some questionable constitutional clauses of dubious provenance.

Three steps are required.

First, a proposal should be tabled in the parliament – but, please, not in the Parliamentary Committee on Constitutional Reform – to limit the president’s immunity from criminal proceedings to his official acts only, as under Article 213 of the 1956 Constitution.

Second, resolutions should be moved in the Senate and the National Assembly urging Zardari to give up his immunity and face the courts. No exception should be allowed to the principle that everyone is accountable under the law for their deeds and misdeeds. If Zardari is acquitted, he would be vindicated. If convicted, he would automatically lose his job.

Third, all opposition parties should give the assurance that they do not wish to topple the PPP-led coalition at the centre and do not seek mid-term elections.

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