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Legal Eye

July 23, 2019

2019: the unspeakable


July 23, 2019

“Freedom is the freedom to say that two plus two make four. If that is granted, all else follows” — said George Orwell in ‘Nineteen Eighty-Four’.

Is this really what love for one’s country demands if patriotism in Twenty Nineteen is defined to require that truth be stretched – or if need be manufactured – to make the country and its institutions look good?

We are told that the freedom to say that two plus two equals four comes with big responsibility. If folks are going to run amok with such freedom, disparaging those running this place and mocking institutions by asserting that two plus two equals four when everyone knows full well that saying so isn’t in the country’s best interest, isn’t it obvious that people lack the maturity to enjoy such freedom? Is something the matter with selective application of principles if across-the-board application benefits the enemy?

Let’s start with Karkey and Reko Diq. They unfolded at a time when CJP Iftikhar Chaudhry had emerged as lord and saviour, exposing our corrupt political elite. The contract with Karkey was set aside as the Supreme Court unveiled the rental power scandal and declared RPP contracts void ab initio (ie invalid from the start). Declaring past contracts void ab initio, imagining they simply didn’t exist and letting losses lie where they fall has been this era’s big contribution to our jurisprudence.

Pursuant to international arbitration under ICSID, $850 million in penalty has been slapped on Pakistan. It is embarrassing to read the 300-page award and its legal analysis. The arbitral tribunal finds that, “the Supreme Court judgment which declared the Contract void ab initio was arbitrary and therefore has no effect in international law...” That, “Pakistan has expropriated Karkey’s investment through the judgment which declared the contract void ab initio…” And that, “such deprivation cannot be considered a legitimate regulatory taking as it stems from the arbitrary 30 March 2012 judgment.”

The award lays bare infirmities in the SC’s reasoning and records how NAB had at one stage settled the matter with Karkey only to be goaded into taking action against by the SC. The bottom line of Karkey is this: the SC rode roughshod over contractual commitments Pakistan made with Karkey on mere suspicion of corruption by Pakistani officials – and this has cost Pakistan $850 million.

If $850 million in Karkey is the cost of the SC’s acts of commission, the $6 billion cost in Reko Diq is a combination of omission and commission (in the sense that it was originally the Balochistan government that wished to deny mining rights to the Tethyan Copper Company (TCC)). The Reko Diq award isn’t public yet and so we are unaware of its reasoning. But what is clear is that the SC’s finding that the 1993 contract between the Balochistan government and the TCC was void ab initio has come back to bite us here as well.

During the Karkey arbitration, the Pakistani side peddled the narrative that sells well domestically – certain ‘red flags’ raise suspicions about how the contract was awarded and so the burden of proof is on Karkey to exonerate itself from allegations of wrongdoing. The tribunal restated the foundational principle of law: that a party making an allegation has the burden to prove it and that it was for Pakistan to establish through clear and convincing evidence that Karkey was involved in a corruption scheme – which it failed to do.

The narrative rejected in Karkey lies at the heart of our accountability drive and also forms the basis of the void ab initio rulings passed by the SC against foreign and domestic entities dealing with the state. The argument is that if public officials who execute contracts on the state’s behalf are suspected of being corrupt or unwise in grant of contracts such suspicion is enough to set the contracts at naught, with the cost and consequences of such cancellation resting with the private parties dealing with the state.

Our narrative rests on three flawed arguments: one, white-collar crime is hard to prove and so prosecution doesn’t need to prove wrongdoing through clear and convincing evidence (or even balance of probabilities) and instead the suspects bear the burden of proving themselves innocent. Two, there is no distinction between decisions suffering from procedural irregularities, decisions whose wisdom can be second-guessed and decisions that are products of illegal gratification. All three can be grounds for corruption charges.

Three, no matter how much water has flown under the bridge, if an old contract is declared void ab initio and all parties made to suffer losses sustained by them by virtue of its cancellation, this will deter private parties from engaging with dirty public office-holders in future.

Our brave new jurisprudence sees suspects as guilty until proven innocent, ends the distinction between irregularity and corruption and allows courts to second-guess decisions of public officials and slap criminal liability if the court would have preferred a different decision.

Look at Shahid Khaqan Abbasi and Miftah Ismail. Even their fierce adversaries do not impute financial impropriety to them. They are educated, hardworking and skilled individuals with a track record of professional and financial success in their personal lives. As public servants they have a reputation of integrity, civility and ability to disagree while employing logical reasoning. These are the sorts of people any intelligent state would wish to attract to public service. Is an example to be made out of them because they are guilty by association?

If those with sound reputation run the risk of punishment and are targeted for their political choices, irreparable harm is done to accountability and justice. It offends the collective sense of fairness upon which rests societal equilibrium. When accountability appears to be about entrenching power relations and the justice system is used as a means to create winners and losers independent of underlying ideas of right and wrong, then we are on a dangerous track with repression as the only lever.

The state’s reaction post the Arshad Malik scandal has been most insightful. Justice Stevens had written in Bush v Gore that, “we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is clear. It is the nation’s confidence in the judge as impartial guardian of the rule of law.” There are situations in which scrambles to window dress scandals and manufacture new villains blurs the recognition that it is the integrity and judiciousness of the judicial process that is on trial.

The judiciary is empowered by the legal authority vested in it by the constitution. When it produces justice in accordance with the law, moral authority backs its findings. But if it acts beholden to power wielders without much regard for propriety and fairness in its conduct, as evident during much of our history under authoritarian regimes, the gap between the courts’ legal and moral authority grows and the latter kind of authority is put in grave peril.

We have officially declared victory post the ICJ’s Jadhav ruling. PTI ministers and some ‘analysts’ have gone further to claim that only if the PML-N regime had registered the 2008 bilateral agreement between India and Pakistan, the Indian case would have been thrown out. How does one understand the thinking of a polity whose mouthpieces find it imperative to misconstrue and aggressively misrepresent the findings of a ruling delivered by the ICJ in plain English and publicly available for everyone to read? So if we define India’s purpose of going to the ICJ to have Jadhav released and the ruling of Pakistan’s court set aside, we can claim that India lost.

But how do we explain the ICJ’s finding that Pakistan breached its obligations under the Vienna Convention when it refused consular access to an alleged spy, that due to such breach Pakistan must ensure review and reconsideration of the conviction by judicial authorities, even if that requires passing fresh legislation, and till such time Jadhav ought not be executed? Why were we the lone dissenter?

The ICJ explains that it can’t sit in judgment over the conviction as an appellate court as its jurisdiction is limited to determining whether Pakistan breached the Vienna Convention in dealing with Jadhav and the legality of the conviction falls beyond its jurisdiction. Jadhav’s case was about the right of a spy to consular access, due process and fair trial. And the ICJ has held, while rejecting our position and after taking into account the 2008 agreement, that international law obliges Pakistan to afford consular access to Jadhav.

If we are convinced that propaganda is the guardian of our national interest and two and two should make four only when it pleases power by making it look good, then the Pakistan of Twenty Nineteen is much like Orwell’s Nineteen Eighty-Four. But this, unfortunately, is not fiction.

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