Pakistani Chief Judge's Anti-Corruption Campaign

Led by Chief Justice Iftikhar Chaudhry, the judges of Pakistan Supreme Court have overturned former President Musharraf's amnesty order for 8000 top politicians, including current President Asif Ali Zardari, and declared jihad against corruption at the highest levels of government.

Pakistani judiciary's battle against rampant corruption has recently escalated with the jailing of a top serving police official at the Federal Investigation Agency (FIA), and the ultimatum to the anti-corruption chief of the National Accountability Bureau (NAB) to reopen domestic and international corruption cases against the beneficiaries of the NRO amnesty, or be prepared to go to jail.

Some critics of the Supreme Court actions see the top court's recent orders against top officials as abuse of power by Mr. Iftikhar Chaudhry, the head of the unelected and independent judiciary in Pakistan. They accuse the Chaudhry court of engaging in unwarranted judicial activism designed to usurp the powers of the elected legislature and executive branches.

Unfortunately, Pakistan continues to have the dubious distinction of being among the 50 most corrupt countries on a list of 180 nations ranked by Transparency International in 2009. Under the current PPP government, Pakistan has slipped 5 places to being 42nd most corrupt from 47th last year. By contrast, India is ranked much better as the 84th most corrupt country.

While I have been critical of some of Justice Chaudhry's behavior in the past, I have now concluded that judicial activism to fight high-level corruption is necessary, at least in the near term. However, I do expect that there will be both positive and negative consequences of the judiciary-led war on corruption in Pakistan.

The most likely upside to come from the court actions is that the politicians and bureaucrats will be forced to think twice before they demand to be paid off in exchange for illegal favors. The activist top court judges will certainly help reduce the current high levels of corruption among the top leaders, and help set a better tone for their underlings in positions of power.

The negative consequences of the court actions include a gross imbalance of power and a continuing institutional confrontation between the judicial and executive branches of government. An extended struggle may prove detrimental to better governance, and possibly open the way for another military intervention in the country.

Lt us hope that good sense will prevail to ensure that long-term positives will significantly outweigh the short-term negative consequences of the powerful judges' war on deep-rooted and highly corrosive corruption in Pakistan.

Related Links:

Haq's Musings

Justice Chaudhry's Address to New York Bar

Incompetence and Corruption in Pakistan

Zardari Corruption Probe

NRO Amnesty Order Overturned

Transparency International Rankings 2009


Riaz Haq said…
Here's a BBC report about alarm over rising corruption in India:

A group of eminent Indians says they are "alarmed" by the rising corruption which is "corroding the fabric" of the nation.

In an 'open letter', they have expressed concern about "widespread governance deficit almost in every sphere of national activity".

The group includes businessman Azim Premji and ex-central bank governor Bimal Jalan.

A number of corruption scandals have shaken India in recent months.

"Possibly, the biggest issue corroding the fabric of our nation is corruption. This malaise needs to be tackled with a sense of urgency, determination and on a war footing," the group wrote in an 'open letter to our leaders'.

The letter said that independent anti-corruption bodies should be set up "speedily".

The Congress party-led government is battling allegations of corruption over the allocation of telecom licences - why so-called 2G spectrum phone licences were sold in 2008 for a fraction of their value, costing the government $37bn (£23bn) in lost revenue, according to the national auditor.

Another high-profile inquiry is continuing into claims that organisers of the Delhi Commonwealth Games swindled millions of dollars from the October event.


Congress party president Sonia Gandhi said recently that corruption was a disease in India.

The group wrote that it was also "alarmed at the widespread governance deficit most in every sphere of national activity covering government, business and institutions".

"Widespread discretionary decision making have been routinely subjected to extraneous influences.

"The topmost responsibility of those at the helm of the nation's affairs must be to urgently restore the self-confidence and self-belief of Indians in themselves and in the State as well as in Indian business and public institutions which touch the lives of every Indian."

A recent report by US-based group Global Financial Integrity said the illegal flight of capital through tax evasion, crime and corruption had widened inequality in India.

Many also accuse governments and politicians of corruption in India.
Riaz Haq said…
Indian Supreme Court appears to be following Pakistani Supreme Court's lead in fighting corruption.

Here's a BBC report:

India's Supreme Court has said that the practice of illegal funnelling of wealth overseas by Indians is a "pure and simple theft of national money".

The court also asked what the government was doing to retrieve the illegal money in foreign banks.

US-based group Global Financial Integrity has said that India has lost more than $460bn in such illegal flight of capital since Independence.

It said the illicit outflows increased after economic reforms began in 1991.

The report also said that almost three-quarters of the illegal money that comprises India's underground economy ends up outside the country.

India's underground economy has been estimated to account for 50% of the country's GDP - $640bn at the end of 2008.

Wednesday's remarks by the Supreme Court came when it was hearing a petition filed by a former federal Law Minister Ram Jethmalani and others on the alleged inaction of the government in bringing back illegal money parked overseas by rich Indians and companies.

In response, India's Solicitor-General Gopal Subramaniam submitted a sealed cover containing 16 names of individuals and companies who had accounts with a Liechtenstein-based bank.

"This is all the information you have or you have something more! We are talking about the huge money. It is a plunder of the nation," remarked Justice B Sudershan Reddy.

'Mind-boggling crime'

"It is a pure and simple theft of national money. We are talking about [a] mind-boggling crime.

Mr Subramaniam said the government was taking measures to bring back the illegal money, but said there were difficulties in sharing the information because of confidentiality treaties between countries.

"All we want is that you give all the information about the money deposited in the foreign banks by Indians. You cannot confine the petition to one bank," Justice SS Nijjar said.

The court has fixed 27 January as the next date of hearing.

Global Financial Integrity said the illegal flight of capital through tax evasion, crime and corruption had widened inequality in India.

High net-worth individuals and private companies were found to be primary drivers of illegal capital flows.
Riaz Haq said…
Transparency International, in its 2011 world corruption report, has shown Islamabad sliding down from last year’s 34th to 42nd in ranking amongst the most corrupt nations in the world, according to The News:

However, this improvement is not due to the fact that the government or the rulers are less corrupt than they were before but because of some good results shown by institutions like the judiciary, Public Accounts Committee (PAC), federal tax ombudsman and the defence departments.

Although last year’s 34th position of Pakistan was out of a total of 178 countries assessed by Transparency International as against 2011’s 42nd rank out of 183 countries, still the country did not deteriorate further as has been the case during the previous three years of the present regime.

To be released here on Thursday, the Transparency International’s 2011 Corruption Perceptions Index evaluated Pakistan getting 2.5 score out of 10, and ranked as 42nd most corrupt country out of 183 countries.

In 2010, TI report Pakistan’s score was 2.3, and it ranked 34th most corrupt country out 178 countries. In 2011, the rank of Pakistan has improved because of increase in the number of countries assessed this year.

Pakistan gained new heights in corruption during the last three years under the present rulers. Pakistan ranked as the 47th most corrupt country in 2008, but in 2009 the country became more corrupt and ranked 42nd in 2009.

In 2010, it was 34th most corrupt nation in the world. However, it is interesting to note that the Transparency International acknowledged that the arrest in the further decline of Pakistan in terms of corruption is not due to the present government’s efforts to curb the menace but owing to commendable role of the judiciary, the Public Accounts Committee, the defence establishment and the federal tax ombudsman.

It underscored that PAC, which has done remarkable work under Leader of the Opposition Chaudhry Nisar Ali Khan, recovered Rs115 billion from 2008 to 2011. The TIP also applauded judiciary’s zero-tolerance for corruption, the Ministry of Defence efforts to apply long-standing Public Procurement Rules 2004 in the armed forces departments; and the working of the federal tax ombudsman as one of the cleanest institutions in the government.

The TIP, however, said that this progress has been overshadowed by the ongoing corruption cases like the NICL, RPPs and 2010 Haj scandal in which the Supreme Court has affected recoveries of billions of rupees.

The TI report says that corruption continues to plague too many countries around the world. According to the Transparency International’s 2011 Corruption Perceptions Index, some governments failing to protect citizens from corruption be it abuse of public resources, bribery or secretive decision-making.

Transparency International warned that protests around the world, often fuelled by corruption and economic instability, clearly show citizens feel their leaders and public institutions are neither transparent nor accountable enough.

The 2011 index scores 183 countries and territories from 0 (highly corrupt) to 10 (very clean) based on perceived levels of public sector corruption. It uses data from 17 surveys that look at factors such as enforcement of anti-corruption laws, access to information and conflicts of interest. Two-thirds of ranked countries score less than five. New Zealand ranks first, followed by Finland and Denmark. Somalia and North Korea (included in the index for the first time) are last. Pakistan with 2.4 score ranked 42nd most corrupt country.
Riaz Haq said…
Here's a WSJ report on judicial activism in Pakistan under CJ Chaudhry:

..A new report by the International Commission of Jurists, a Geneva-based nongovernment organization of judges and lawyers, suggests his legacy might be more complicated.

The report, released this month and based on a field trip to Pakistan last fall, paints a picture of a judiciary under Mr. Chaudhry that is exercising unusually wide-ranging powers.
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Pakistan’s judiciary has, during Mr. Chaudhry’s tenure as chief justice, stepped into areas normally reserved for a nation’s government, raising concerns over the balance of power, the report said.

It noted that judges in Pakistan are increasingly initiating court proceedings on issues – as opposed to hearing cases brought by plaintiffs.

The courts often launch these so-called “suo moto” cases in instances where the government has failed to take action. The report said in some cases this helps to protect the rule of law.

It cited an example last year when paramilitary forces were caught on video shooting dead a teenager who was pleading for his life. The Supreme Court ordered senior paramilitary officers removed from their posts within three days and told a state prosecutor to launch an investigation.

But in other cases Mr. Chaudhry appears to arbitrarily initiate “suo moto” proceedings based on articles in Pakistani newspapers, the report said. “This introduces a certain element of chance to the practice which is hardly compatible with the rule of law.”

A notable example of this, not contained in the ICJ report, involves Atiqa Odho, a Pakistani television actor who was allegedly detained last year at Karachi airport with liquor in her luggage but later released without charges. (Alcohol is illegal in Pakistan.)

Mr. Chaudhry, on reading media reports, ordered authorities to register a case against Ms. Odho, which they did. A court is yet to rule in the case. Attempts to reach Mr. Chaudhry were not successful.

In another well-known example, the Supreme Court tried to rule on the price of sugar – a matter usually left to government or market forces.

Mr. Chaudhry has fought in recent years to weaken the role of Parliament in appointing judges, the report noted. Under Pakistan’s constitution, a judicial commission, including the chief justice, nominates judges. But a parliamentary committee has the right to reject or confirm the nominations.

Last year, the Supreme Court overturned the committee’s decision to reject the appointment of a number of high court judges whom the judicial commission had recommended.

The report found the “authority of the Parliamentary Committee was reduced drastically,” by that judgment.

The authors nodded to concerns about the failure of governance in Pakistan. But it also pointed out the pitfalls of a judiciary trying to fill the role of an administration.

“Parliament and Government are weak, which leads to the Supreme Court filling the gap by intervening in matters germane to the administration,” the report said. “This occurs to the extent that the Supreme Court even…intervenes to strengthen its own and particularly the power of the Chief Justice as far as the appointment of judges is concerned. A concern in respect of the balance of powers thereby arises.”

The report did not get into an ongoing struggle between the judiciary and the government of President Asif Ali Zardari.....
Riaz Haq said…
Here's an excerpt on "corruption eruption" from USIP:

According to (Moises) Naim, the word ‘corruption’ has become the “universal diagnosis for a nation’s ills” (Naim, 2005). This has the lead to perspective that if one can curtail the culture of greed in a given society, all other problems will be easy to solve. The problem, however, corruption is not necessarily correlated with economic prosperity. In countries such as Hungary, Italy, and Poland, a certain degree of prosperity has been able to coexist with systems of corruption. Furthermore, China, India, and Thailand provide examples of countries deemed to been highly corrupt while simultaneously experiencing high levels of economic growth.

Additionally, the fixation on corruption as the ‘ends-all’ problem drives the public debate away from other critical problems affecting a given state. Media outlets are more likely to publish on topic regarding corruption or scandalous activity, perceiving this to be more newsworthy. In doing so, they neglect to draw attention to other critical problems such as education, healthcare, infrastructure, or the economy. Although these problems may be aggravated by corruption, they were not created by corruption alone. They are the result of underdeveloped institutions that have been exploited by corruptive practices. Thus, the tendency to assume that the abolition of corruption will bring about prosperity is a very limited perspective.

Finally, the focus on corruption as the source of a state’s problems creates unrealistic expectations as to what is required to improve the standard of living within that state. There is a belief that by simply removing a corrupt leader, prosperity will follow. However, there is no direct correlation between theses two factors; the situation is more complex, involving a multitude of factors. If the expectations is that lustration will result in improved standards of living, this sets the stage for societal discontent and possible social unrest.
Riaz Haq said…
Here's an Express Tribune story on the adverse economic impact of activist judges in Pakistan:

Former State Bank of Pakistan governor Dr Ishrat Hussain claims that the country’s economy has suffered as a result of interventions by the Supreme Court in recent years.
While addressing the International Judicial Conference’s working group on Saturday, he said the country’s risk profile has been elevated as the investors fear of being embroiled in endless litigation.
“Even if the investors overcome procedural hurdles, they are now faced with an additional concern of being dragged into the court over legal lacunas, which adds to uncertainty and unpredictability of investing in Pakistan,” the former central bank chief said.
Dr Hussain said that despite fulfilling the requirements, the fear that the country’s courts may take suo motu notice of the transaction, and subsequently issue a stay order, deters businesses from investing in Pakistan.
“A large number of frivolous petitions are filed every year that have dire economic consequences. While the cost of such filings is insignificant the economy suffers enormously,” he added.
Highlighting SC’s judgments in cases such as, Reko Diq, LNG project and privatisation of Pakistan Steel Mills (PSM), the former SBP chief said the decisions have had a negative impact on the country’s economic development.

About the LNG case, Dr Hussain said the government received several bids but they could not proceed further due to the court’s intervention, adding that there is a need for expeditious disposal of suo motu cases related to economic issues.
Similarly, commenting on SC’s judgment in the PSM case, he said the country has not carried out a single transaction of privatisation since the decision.
The former central bank chief said the court judgments have instilled fear among the civil servants and political leaders for putting out any public assets for sale to avoid judicial intervention.
Lastly, taking a swipe at the judicial activism, Dr Hussain said the court’s interference in the appointments, promotions and terminations was hampering the operations of civil services.
Treading a cautious line, the former state bank governor said, “Let me submit with all the humility and without sounding arrogant or offending anyone’s sensibilities, that economic decision are highly complex and its repercussions are interlinked both in time as well as space.”
He recommended that laws related to Land Revenue Act needed to be updated, in accordance with modern demands of agro business, industry, commerce, infrastructure, etc.
The former SBP chief also stated that the disposal by the banking courts was 23,694 against a total of 68,973 outstanding cases which was lower than the disposal rate by all special courts and Administrative Tribunals.

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