ToRs and democratic sustainability

The writer is a senior journalist.

A cautious and unsparing grand opposition has given some leeway to the prime minister for negotiations over its meticulously prepared Terms of Reference (ToRs), instead of collectively demanding his resignation. Will we be witnessing an elaborate system of accountability while keeping democratic transition on the road?

Instead of misconstruing the opposition’s political concession as weakness – not asking for the prompt resignation of the PM – the sensible course for the Sharif government is to engage the opposition in serious discussion on the latter’s ToRs. If Sharif and his battery of loose cannons take an offensive course, he will be inviting trouble on the streets. The choice is between keeping the ball within the parliamentary court, with the Supreme Court as an arbiter, and the breakdown of the constitutional framework – allowing the army to yet again arbitrate the political conflict by ‘other means’.

The initial flexibility shown by the prime minister – by agreeing to have serving judges instead of retired judges in the commission – was encouraging. But by not consulting the opposition while preparing the commission’s ToRs, the government showed its intentions. This also showed a clear conflict of interest since the names of the PM’s family were at the centre of the controversy. The opposition was left with no option but to promptly reject the self-serving official ToRs; it also succeeded in making it a most pressing issue.

Now the opposition has come up with very tough and thorough ToRs by avoiding all possible loopholes. Except for the alleged charge sheet against the PM and his immediate family in the preamble, the opposition has asked in ToR-2 all the pertinent questions to explore the mystery of offshore accounts and properties and thoroughly investigate the trail of the ostensibly unaccounted-for money of the respondents named in the leaked Panama Papers, including the PM and his immediate family.

On the legal side, ToR-3 proposes a special law titled ‘Panama Papers (Inquiry and Trial) Act, 2016’ instead of following the beaten track of the Pakistan Commission of Inquiry Act, 1956. Besides asking for three serving judges headed by the chief justice, ToR-3 has proposed a very powerful and professional committee of forensic audit experts to inquire into all that is needed to determine responsibility in this controversy.

The commission is to make it obligatory for the respondent to give mandatory authorisation by an irrevocable power of attorney to the concerned member/official of the committee to access all that is related to his/her offshore accounts and properties. In line with the previous Sharif government’s Ehtesab Act, 1997 and the NAB Ordinance, 1999, the ToR places the onus of responsibility on the respondent – once ownership of assets/accounts is proved.

While all the proceedings of the commission will be open, ToR-5 confers all-encompassing executive powers to the commission, including possible international joint investigation, in accordance with the UN Convention Against Corruption (UNCAS), the World Bank Stolen Assets Recovery Initiative (STAR) and Mutual Legal Assistance Requests (MLARS). However, by making the procedure of inquiry inquisitorial in character, the bitterness of the otherwise liberal authors of the ToR reminds us of the Roman Catholic Church’s 13th century tribunals for the punishment of heretics during the Inquisition. The timeline for the inquiry puts the First Family at the top of the inquisition in first three/four months and rest in 12-months.

Has the opposition tried to make it almost impossible for the First Family to face its humiliating inquisition? So that they (the opposition) can then take to the streets chanting ‘Go Nawaz Go’. It seems so. What should be the government’s response? The government is in a dilemma: doomed if it concedes, doomed if it rejects. No fragile civilian government can survive in Pakistan if it takes a confrontational course, the way the Bhutto government did in the last months of its rule against the PNA movement. However, when the opposition’s current tirade is neither like the PNA’s reaction backed by Gen Zia nor like Imran-Qadri’s dharna, which sought the blessings of the powers that be, you can’t rule out that one wrong move or incident can create the ‘necessary condition’ for an ‘extra-constitutional intervention’.

The two ToRs provide sufficient room to the chief justice of Pakistan to raise queries that may force the government to seek the opposition’s consent for the sake of credibility of the accountability process and sustainability of the democratic transition. The Pakistan Bar Council and the Supreme Court Bar Association can also seek suo motu intervention by the Supreme Court. A less dangerous course for a prime minister under moral burden is to engage the opposition in a dialogue over the ToRs on the Panama Papers’ leaks. The Sharif government cannot get a moral upper hand by accusing others or by generalising the issue of corruption while its own neck is on the line.

Indeed, the current debate and polarisation over corruption is extremely motivated. But it can help set the ball rolling in the right direction – an all-sided overhauling of a thoroughly corrupt system and an across-the-board accountability of all ‘plunderers of national wealth’ with no exception. The kind of ToR proposed by the opposition provides a basis for expanding it to other much wider areas of accountability. So far, despite use of foul language, the two sides have not crossed democratic and constitutional limits and that is a good omen for a democratic transition.

A very good debate is taking place between the moralist inquisitors and defenders of democracy on the critical relationship between much-needed accountability and sustenance of the constitutional order. We as defenders of democracy, supremacy of the constitution and sovereignty of the people can under no pretext become apologists of the corrupt who must be brought to justice. But blaming democracy for corruption and its replacement by some kind of a totalitarian order is incomparably worse than the tremendous possibilities a democratic and constitutional order can offer. Indeed, the democratic remedy is incremental and reformist.

The ‘revolutionary’ (read reactionary) and bloody solutions presented by the Daesh or Daawa/Taliban or their likes have turned out to be horrendously devastating. We have also seen military-led ‘revolutions’ in Pakistan that destroyed the social and civil fabric of our society and distracted the armed forces from their actual job, and distorted their role as an important institution of the executive. It is an unprecedented path that General Raheel Sharif has chosen – by more or less keeping away from political meddling in civilian affairs, except constructively during the dharna days. But it seems that, by dictating internal and external security and related policies, the army has not only assumed the role of an ‘over-determining’ structure, but has also shown its keenness to exhibit that eminence.

As the ruling parties partially fail to deliver while wasting their energies on fighting each other, the post-Iftikhar Chaudhry judiciary reverts to the other extreme of the pendulum and the media is bent upon bringing disrepute to its foundational democratic strength, the democratic transition remains vulnerable to unconstitutional diktats.

The power struggle between the major political parties can further erode the credibility and viability of the civilian system. Therefore, there must be transparency and accountability and that must strengthen the democratic transition. 

Email: imtiaz.safma@gmail.com

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