Accountability: a hollow hope

All premiers have failed to complete their terms. But no military general or judge faced litigation for what they did.

The accountability of institutions and individuals is a key concept in developed democracies. Political institutions are answerable for their failures, errors and predilections. Members of legislatures are answerable to the electorate on a regular basis through elections. Being a politician is a public career mandated by voters. The executive also faces the wrath of opposition members in assemblies throughout the year and are always at the mercy of the legislature to remain in office because if they lose their confidence, they lose power. Heads of states or presidents can also be impeached by the assemblies for their misdeeds. Similarly, two important institutions, the military and civil bureaucracy, also have elaborate mechanisms to hold office as long as they perform in accordance with the law.

In the developed world, both civil and military bureaucracy work under the civilian leadership. In the US, military generals have to follow the orders of their civilian commander in chief, i.e., the president. The president can force any general to resign and the generals have no choice but to resign. Take the example of General Douglas MacArthur by President Harry S Truman and dismissal of two recent American generals, Stanley McChrystal and John Allen, by President Barack Obama. In Pakistan, it seems everyone is accountable except the military and superior judiciary. Both institutions believe in a self-accountability process which is contrary to the original philosophy initiated by Greek, English and French philosophers. The fourth American president, James Madison, explained the concept in four words “office should check office”, meaning one office should check the office of another.

In the recent NLC corruption case, the military top brass decided not to initiate corruption charges against three ex-army generals in the ordinary court in an ordinary manner. They set an extraordinary precedent to rehire those generals to face corruption charges in a military court in uniforms. I have not yet seen any suo-motu notice against this gross violation of the ‘due process’ clause of the Constitution. On the other hand, it was a lot easier for our Court to hang an elected prime minister by a three-four split decision on the charge of abetment to murder, for which punishment was never given before or after this case, nor was this precedent ever followed in any significant case. Again, a duly elected prime minister was romped in as a hijacker and terrorist and later sent on forced exile for 10 long years. It is also not difficult to send home a unanimously elected prime minister on contempt of court charges.

As far as parliament is concerned, no single parliament could complete its constitutional term in history under civilian leadership. All prime ministers also failed to complete their terms in office. But no military general or judge faced any litigation for what they did to the nation. In actuality, it can be argued that generals and judges had common interests and safeguarded each other. Despite the break-up of the country into two and the abrogation of all constitutions, not a single person in uniform or robe was made accountable.

The concept of judicial independence is deeply connected with the accountability of judiciary. In India, parliament can impeach the judges of the superior courts. The American political system’s judges, who are highly independent because they are appointed for lifetime, can also be impeached by Congress. No institution can be built and progress without accountability. Pakistan is probably the only nation in the world where judges appoint judges and judges remove judges. Hence, one could say there is no system of independent accountability. According to the Constitution, under Article 209, there is a Supreme Judicial Council headed by the chief justice of Pakistan and comprising other judges, which can remove a judge from his office. Only a handful of judges have so far been removed for misconduct through this process since the formation of Pakistan.

All institutions in Pakistan joined hands having common agendas or interests, except politicians. Generals and judges had a convenient marriage. There is no doubt that politicians deserved the treatment they received; they did not learn anything from history and thus, came to this pass. The military and judiciary had no sympathy for democratic values because they were not inducted through a democratic process. Moreover, they were not subjected to checks by other organs of the state.

Published in The Express Tribune, November 6^th, 2012.