A implementation bench of the Supreme Court has stopped the National Accountability Bureau from proceeding against Bahria Town and directed the company to pay Rs 460 billion to the government in seven installments. The bench was formed following a judgment by Justice Ijaz Afzal declaring the transfer of state-owned land to the company illegal and void. Justice Afzal had directed the Bureau to file references against all those involved in the transfer of land which he said amounted to wanton plunder.
Earlier, in the Grand Hyatt case, the Supreme Court had reversed an Islamabad High Court order upholding the cancellation of the land lease by the Capital Development Authority over violations of lease conditions and building control laws. Instead, the apex court directed M/s BNP to pay Rs 17.5 billion to the CDA in eight installments.
The verdicts in the Bahria Town and M/S BNP cases are based on the principle of protection of third party rights. The verdicts have raised some crucial questions. It has been argued that in delivering these judgments the apex court has unreasonably become a party to the practice of ‘voluntary return’, which under law is a matter for the accountability courts. It has been said that the verdicts have undermined the rule of law, dented people’s confidence in courts and are against public policy. As a result the business elite, involved in fraudulent transactions of great magnitude, have been allowed to circumvent criminal prosecution.
Strictly speaking, the verdicts do not amount to voluntary return as defined under the NAB Ordinance 1999. However, in essence they come close as they involve return of illicit financial gains without criminal prosecution. In theory, any violation of accountability law leads to a criminal and a civil liability. The voluntary return clause allows the accused to return the proceeds of corruption after which there is no trial, no conviction and no sentence.
The precedents set by the apex court in the Grand Hyatt and Bahria Town cases may prove risky. They might encourage corruption by introducing an element of impunity particularly among the powerful white collar criminals. Fraudulent acquisition of state land through bribery is a crime against society. It promotes a culture of corruption in the economy, bureaucracy and business. In such cases the judiciary needs to be aggressive and punitive rather than compassionate and curative. The voluntary return is a reprehnsible affront to the sense and cause of justice. As a matter of public policy the accused should not be allowed to go scot-free. A sentence has to be passed to ensure deterrence, rehabilitation and proper administration of justice.
The malady of a soft justice for big economic criminals and an unforgiving justice for meeker offenders aptly fits the words of Greek philosopher Anacharsis: “Laws are spider-webs which catch little flies but cannot hold the big ones”
Ironically, in 2016 the apex court itself had deprecated the practice of voluntary return and restrained the NAB chairman from accepting an offer of voluntary return. In several judgments, the Indian Supreme Court has rejected the practice on the pretext that it would tend to pollute the fountain of justice. In 1987, the Supreme Court of Canada also disparaged the idea that justice can be procured at the bargaining table.
The verdicts might appear to their lordships to be pragmatic and well reasoned. However, they leave unanswered the question: why does the benefit of third party rights always extend to the powerful elite and not to similarly placed ordinary encroachers? While M/s BNP and Bahria Town have been granted relief, landgrabbers from a lower stratum of society are facing a clean-up operation pursuant to superior court orders.
It appears that when they are confronted with overwhelming evidence of criminal activity, the powerful can bargain their way out of trouble. Faced with a sure prospect of a jail sentence they are able to escape the long arm of law by simply returning their unjust profit. Despite express judicial findings of fraud and land grab against them (for instance, Justice Afzal’s judgment against Bahria Town), they emerge unscathed. Poorer outlaws, meanwhile, are caught and no amount of exertion can wriggle them out. This malady of a soft justice for big economic criminals and an unforgiving justice for meeker offenders aptly fits the words of Greek philosopher Anacharsis: “Laws are spider-webs which catch little flies but cannot hold the big ones”.
Samuel Huntington once theorized that rapid economic changes create inequalities of wealth and relative deprivation among the masses. Will such verdicts by the apex court not frustrate the enroachers who are similarly placed but are being meted out a different treatment? It is pertinent to mention that great masses of a nation are not composed of jurists and philosphers. They do not understand the technicalities of law. For them, faith is unequivocally the only basis of a fair outlook on life. Whenever an illegally constructed cottage of a powerless fruit vendor or a three-marla house of a helpless labourer is demolished but an unlawfully raised building of a powerful business tycoon is regularized, the credibility of the rule of law and the institutions responsible for dispensing justice is jeopardized and the masses’ faith in our justice system stands enfeebled.
The writer is a freelancer