Corruption in courts

Published January 31, 2010

EVERYONE is presumed innocent until proven guilty. The chief justice of Pakistan seeks to reverse this principle in dealing with the corrupt. Speaking to a group of lawyers the other day he was quoted as saying that every judge and everyone else from every walk of life must be called upon to prove that he is 'clean'.

As an ultimate custodian of the rights of the people, Justice Iftikhar Chaudhry, thus, has given voice to a despairing nation. Corruption is growing fast and the corrupt are getting ever so defiant in the knowledge that it is all but impossible to punish them under ordinary laws and procedures. The corrupt often get rewarded but are hardly ever punished. The common man indeed has long felt the way the chief justice feels now.

Let alone politicians, government officials and businessmen, even our divines, who frown upon modernity for the sake of it, tend to condone corruption and some even benefit from it. Since neither laws nor moral exhortations have helped, some extra-legal (but not unjust) measures are needed to check corruption if state and society are not to collapse under its weight.

The situation is too grave to be remedied by penal laws under which admissible evidence is hardly ever forthcoming and the benefit of the doubt must go to the accused. Legal proceedings linger on for years and yet records show that less than 10 per cent of all crimes reported end in a conviction.

Amazingly, conviction in corruption cases is not even one per cent. The reason is obvious the giver of the bribe having reaped the benefits of an illicit transaction is hardly ever forthcoming to depose against the taker and there is no other party aggrieved to pursue the charge.

Extraordinary situations call for extraordinary remedies. When the colonial British could not prevent tribal raids on their garrisons and the movement of their troops in the borderlands was not safe, they enacted the Frontier Crimes Regulation. Reinforced by jirgas and the authority of political agents, some tribal agencies in the course of time became safer under the FCR than were the settled districts under normal laws with all their safeguards.

Even Pakistan's Criminal Procedure Code contains provisions (Sections 107 to 110) under which people reputed to be thieves, forgers, blackmailers, desperados and such others can be put under some kind of restraint when the evidence is not enough to try them.

Similar provisions can be made in the legal code to bar those who are reputed (though not proved) to be corrupt from holding such public offices that provide an opportunity to fleece the public or to plunder the state. It will not be an easy task, though. The corrupt can always bribe their way to lucrative jobs. But for honest supervisors it would be easier to sideline or punish them on the basis of reputation even when hard evidence is not forthcoming for a judicial trial.The anti-corruption establishments — as they are now constituted — hardly go beyond 'raid and trap'. Their victims invariably, so to say, are clerks of court and not presiding officers. Amusingly, the anti-corruption department in a government is generally said to be more corrupt than other departments. That takes us to the fountainhead of corruption, which really lies at the policy and legislative level.

Corruption in public organisations has increased as nomination has replaced competitive merit as the basis of recruitment and posting. A public service which is rooted in corruption cannot but be corrupt in dealing with the people.

Here, let me draw on my experience as director of Karachi excise in the mid 1960s. I do not recall a single instance in a three-year tenure where a minister, a higher official or even a friend exerted his authority, or connection, for permission to open a new bar or posting of checking staff. No doubt there was bribery but the corrupt had no patrons. Prohibition in 1977 transformed the licensing of wine shops and posting of excise staff from an administrative function to a political gambit.

Resultantly, the city now has more liquor outlets and consumption of liquor by minorities is more than it was by the whole population before prohibition. Rumour has it that the bribe for permission to open a wine store runs into millions of rupees. Quite obviously it is a racket and not a service to the non-Muslims who, like some adherents of the majority faith, have bootleggers at their call. Corrupt officials in other departments may be revelling in much less but money can be allegedly seen stealthily changing hands even in the courts.

Warnings like the one given by the chief justice would not lessen corruption. Nor would enhancement of punishment for the offence. Appointing a commission of enquiry would mean nothing more than postponing action and wasting money. No enquiry can be more thorough than the one that was conducted by my friend Justice Shafiur Rehman some 30 years ago. His report — never implemented — gathers dust somewhere.

The chief justice can perhaps invoke some constitutional provision, or promise, to bind parliament and the prime minister to follow the rules and procedures that keep favouritism, nepotism and cronyism out of recruitment and the subsequent placement of civil servants of all description at all levels in every public service.

The people who make it on merit will have pride in their profession and, surely, will also be less corrupt, if at all, than those who have to return the favour and share the loot with their benefactors.

Concluding, one may respectfully ask the chief justice whether a lawyer charging millions of rupees to appear in the Supreme Court just in a bail case makes a deal only for his legal knowledge and exertions, or goes beyond that? Corruption has many subtle dimensions. It is an issue not confined to subordinate courts alone.

Kuldip Nayar in his column in this paper recently quoted a former chief justice of India as saying that 15 per cent of the Supreme Court judges were corrupt. Will a former chief justice here too speak out one day?

kunwaridris@hotmail.com

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