Al Capone doctrine

12 Sep 2017


FOLLOWING on from the landmark Mian Nawaz Sharif disqualification in the Panama case, the high court in Sindh appears to have taken a page out of the Supreme Court’s book and ruled in favour of civil society’s plea to allow Mr A.D. Khowaja, IG Police, to continue. In this matter again like in the Mian Nawaz Sharif case the issues at stake were complex.

At one end stood the right of an elected government to appoint civil servants of its choice to carry out its mandate and at the other were concerns relating to provincial good governance. To balance such issues it appears that in the realm of the development of law the superior courts in Pakistan are now giving birth to a new doctrine namely the ‘Al Capone doctrine’. This doctrine might actually be more effective than the erstwhile and much-reviled doctrine of necessity.

Before one dwells further on this, one might do well to revisit Al Capone. Al Capone was a famous gangster of Chicago who was considered almost impregnable. He used to be cheered by crowds at ball games and considered himself a latter-day Robin Hood. His relationship with the mayor and the local police was mutually beneficial enough to foster the belief that there was no authority that could contain him. However, there were a number of gangster killings in and around Chicago and much like the discomfiture of the Supreme Court in the Panama matter, the continued violence had left Chicago civil society and the federal United States government embarrassed and angry.

In short, a solution was found. Using Capone’s very own admissions in tax returns filed with the tax authorities a novel strategy of prosecuting him for tax evasion was adopted. This strategy resulted in an 11-year conviction. It was simply a legal mechanism used by prosecutors and courts to send a gang boss behind bars on merits that would perhaps not strictly pass the ‘innocent until proven’ guilty test.

This may be more effective than the doctrine of necessity.

The honorable Supreme Court judges are now well known for having read their Godfather. Where they might have stumbled onto fact-meets-fiction in the book is the mention of Al Capone on pages 214 to 217 of the original edition. He is mentioned as an ally of one of the Godfather’s enemies and does send people to try to unsuccessfully eliminate the Godfather. It is a totally fictional construct since the time periods mentioned do not match the time in which the Godfather was set. But who cares: Godfather is and will remain fiction. However, the Al Capone prosecution as the precursor of an iqama prosecution cannot be ignored.

The Al Capone doctrine can now possibly be defined as the post-Iftikhar Chaudhry judicial doctrine created to respond to the concerns of right-thinking citizens in difficult legal situations. The iqama might be the instrument to bring Nawaz down but it was only used like Al Capone’s tax returns because there was overwhelming and admitted evidence of great wealth without a plausible story to back it up. If Nawaz had smelt the coffee and resigned prior to the matter dragging his way through the Supreme Court he would have lived to fight another day. This is the reason why in democratic countries the concept of someone’s ‘position becoming untenable’ is used.

The IG Police in Sindh’s judgement is no different. It also is relying not on any established legal doctrine but arbitrates on a major disconnect between elected members who rightly claim the right to rule while missing civil society’s point that this right has to be exercised within a constitutional framework with its accompanying overtones of morality.

In a country like Pakistan, a sizeable part of the civil society are the mid-rank military, lawyers, judges and other limited newspaper readers. They have a view and while this view might not translate into votes it is the face of our national discourse. If politicians do not develop the skills required to arbitrate the interest of their electorates with overarching civil society concerns including morality and good governance they will continue to bleed power and be displaced by funny iqamas, courts and other institutions.

Politicians have been good at fighting for and bringing democracy but once they receive a mandate they must not look at it as a simple appropriation of state power. While the Sindh government still has time to try and arbitrate various interests by focusing not on appeals against the court order but on legislation that creates trust with civil society, unfortunately, for Mian Sahib there might not be another chance. Next time when Mian Sahib asks ‘mujhe kyun nikala’ someone might just have to whisper Al Capone.

The writer is a former caretaker finance minister of Sindh.

Published in Dawn, September 12th, 2017