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Opinion

Legal Eye

May 5, 2018

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With us or against us?

Pakistan could use a vacation. The environment all around has become so cynical that it is almost toxic. There are a few grand assumptions that are now regarded as the Gospel.

Money is dirty. This is based on the belief that anyone who has money is dirty and has made it by dirty means. In today’s Pakistan, our social consciousness can’t fathom anyone being prosperous without being a crook. The logic is: whoever has money has it because he has stolen it from the people. And thus all successful businessmen and professionals are suspect.

Success is unethical. This is based on the belief that upward mobility isn’t possible unless you are devoid of morals, have been granted undue favours or have mastered the art of stepping on others. Thus, success can only be a product of nepotism or favouritism or unscrupulous conduct. And if you’ve ever had any authority, the presumption is that you would have abused it for personal gain. Is it possible to have a good reputation anymore? No. Anyone can throw dirt at you and the aforesaid beliefs will make it stick.

Further, we have adopted the Bush concept of loyalty: you are either with us or against us. This all-or-nothing concept of loyalty permeates all aspects of our national life. There is no room for nuance, qualified support, dissent or critique. It’s like living in a war zone. You can’t utter words or act in a manner that will strengthen the hands of the enemy. If you support rule of law and independence of the judiciary, you must not speak of judicial reforms or the limits of suo-motu powers or critique the reasoning of judgments. Otherwise, you’ll be perceived as anti-judiciary.

You may observe and respect the sacrifices of soldiers and achievements of the military all you want, but if you speak of Article 243 and civilian control of the military, you are anti-army and wish to corrupt the last standing pillar of the state. If you focus on the constitutional division of labour and distribution of power, and ask if an institution is functioning within its prescribed domain, you are a paragon of plunder who can’t stomach institutions and their heads doing good in the best interest of the country (even if by functioning beyond their scope of authority).

The same concept of loyalty applies to politics. If you support a party, the loyalty must be unconditional. You must swear allegiance to the party head as a person. You must defend all his words and deeds no matter how disdainful. As in the case of our institutions, here too there is no room to support one initiative or policy of a party while opposing another. In this world of black and white, the space for issue-based positions has vanished. If you can’t see one side as completely vile and the other as the best thing since sliced-bread, you are an amoral fence-sitter.

This toxicity is transforming us into sadists. We view with relish scorn being heaped on anyone. So long as an allegation is laced in moral judgment, whether it is backed by facts or not is of no consequence. There is a war going on between the righteous and the forces of evil. Like all wars, there will be some collateral damage. Thus, the patriotism, liberty, dignity and honesty of some good folks getting sullied in the process must be viewed as a casualty of war. So what do you do if you’re caught on the wrong side of this guilty-until-proven-innocent system?

In this system we no longer believe in due process or convictions based on trials. Denuding an accused of his dignity, honour and liberty is now the ultimate form of punishment. This is the new doctrine of necessity. Consider the functioning of NAB, for example. Despite its history of witch-hunts, the media is again celebrating NAB as the purveyor of virtue. NAB arrests anyone it wishes, issues press releases regarding billions looted (accepted as self-evident truth) and releases photos behind bars. And yet it has no convictions to show for the scandals it unearths.

Amid the hype that NAB has begun acting in earnest against the ‘big fish’, it was breaking news last month that it had arrested former secretary and chairman CDA, Imtiyaz Inayat Elahi. NAB projected it as a Rs431 million-corruption case. The chairman of NAB authorised that Elahi be arrested. The accountability court allowed NAB a seven-day physical remand of the accused. After keeping him in NAB’s lockup for seven days for ‘investigation’ purposes, Elahi was sent to Adiala jail. Finally in early April, the Islamabad High Court admitted him to post-arrest bail.

Those who don’t know Elahi personally or of his reputation as a civil servant and know him only through press coverage of his arrest, would be convinced that he must have made some dirty money and is now facing consequences. Now even if NAB files no reference against him or if he is proven innocent after trial, he stands convicted in the eyes of many who will never hear about the facts of his case. By arresting him and declaring to the world that he is a corrupt bureaucrat, NAB took away his liberty and dignity. Whatever happens now, this won’t be undone.

The facts as revealed in the IHC’s bail order are as follows: as chairman of the CDA in 2009, Elahi ordered that the construction of a cultural centre near zero point be stopped. He found that the project was ill-conceived, wasn’t backed by a feasibility study and environmental impact assessment, wouldn’t be financially sustainable (as there already existed underutilised auditoriums and conference rooms in other facilities) and the CDA’s funds could be better prioritised. He ordered that the project scope be rationalised and reduced to make it financially sustainable.

In 2014, the auditor general highlighted the ill planning bit in the project and the Public Accounts Committee ordered that the matter be investigated. The IHC order quotes a letter from the AGPR, dated Dec 15, 2017, that states: “it is again emphasised that [the] matter of ill planning was to be investigated by NAB and not the stoppage of the work on the project as the core issue was conception and viability of the project…” But NAB went ahead and arrested the bureaucrat who identified the ill planning almost ten years back and acted to try and save public funds.

The IHC order further notes that: “NAB authorities conceded before the court that there is no allegation of pecuniary advantage, bribe, illegal gratification against the petitioners or causing any loss to public exchequer with motivation to favour any person or make any grant or concession to any other person as defined in Section 9 of the NAB Ordinance, 1999.” In bail matters, courts don’t delve deep into merits of the case. But it is obvious from the order that the case against Elahi, if at all, can only be that his decision to stop work was wrong.

After 37 years of public service, Elahi was arrested from his home in the middle of the night, produced in a court in handcuffs, kept in NAB’s lock-up for seven days, and then sent to jail. His crime? As principal accounting officer of a development authority, he acted to stop work on a project he found ill conceived and wasteful. But no one will know that. When anyone Googles his name, they will find that he was arrested for indulging in corruption worth millions. He will spend the rest of his life apologetically explaining that he wasn’t a dirty babu.

What lesson will this sorry episode reemphasise? There are no crimes of omission in Pakistan, only those of commission. If you don’t decide anything, you’re good. It is your actions and decisions that will get you in trouble. This mode of accountability in our state of toxicity is redefining work ethic in the public domain: skilled and smart is the public servant who can bide his time without doing anything or taking any decisions. In an ad-hoc Pakistan that is in a war with itself, witch-hunt and collateral damage will remain our modes of accountability.

The writer is a lawyer based in Islamabad.

Email: [email protected]

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