Muddle of accountability

Prosecuting white collar crime requires a very specific skill set and legal framework

Accountability is a job no one wants; those who do try their luck see an unceremonious end. While an ordinary criminal case would involve few pieces of evidence to corroborate the testimonies of even few witnesses, a regular corruption case is shaped by voluminous record of of banking transactions, financial statements, books of accounts, expert reports, contracts and agreements. It does not come as a surprise that a developed country like America with a fully functional system in place gets its 95% convictions in corruption cases through plea-bargain; prosecution is rarely done, accused confesses his crime, returns the looted money and walks free.

Pakistan has witnessed a fair share of accountability hoo haa in the past few decades; not to mention the recent experiment of PTI government which came with the mandate of eradicating corruption. Investigations were carried out by FIA and NAB with utmost support of the Government and the establishment. Yet, once the Challans (investigation reports) were before the courts, the inherent weaknesses of both the investigations and the judicial system came into the limelight. Eventually Shahzad Akbar had to take the brunt for the failure of the system.

PTI’s accountability drive was not a novel one. Rather a fiercer attempt was made in the past. General Musharraf with his newly formed accountability arm NAB, headed by his hand-picked Generals, went after looted money with extreme ferocity. International consultants such as Broadsheet and International Asset Recovery (IAR) were hired. A new local team with representation from military was employed and special courts were established to swiftly deal with the prosecution of the cases. Yet, neither the cases came to an end nor was the accountability experience ever claimed to be reliable. Rather two decades after the Musharraf experiment, Pakistan had to pay a hefty fine of 28.7 million dollars for breach of contractual obligations with its hired international consultants

This raises the same million-dollar question as to why accountability fails despite an unshakable belief in its importance. While all stakeholders are to be blamed, yet it must be borne in mind that compared to ordinary crimes, white collar crime is a specific niche within the law which is not only difficult to investigate and prosecute, but at times may be self-harming. Black money and its preparators may be an asset for hidden yet official networks that work behind the veil purportedly in the interest of the state. Moreover, an accountability arm twisting has the tendency to halt an already crippled system. Speed money though a negative jargon at the least ensures that the system keeps on working. Accountability has unintended consequences for even those who were at the periphery of the crime.

The most important stakeholder in the accountability drive is the government prosecutor mandated to present the case of the agency and assist the court in determining the guilt.

Lack of Judicial Training: Judges of the Anti-Corruption Courts are chosen from the provincial or federal judiciary with no experience or training on white-collar crime. Imagine a judge hearing rent cases for a decade being posted at the anti-corruption court to hear billion dollar financial scams and go through complicated accounting sheets. Civil-Magistrate Judge examination entails criminal and civil law curriculum irrelevant for accountability judges. A person aspiring to become an accountability judge does not need to be tested in the field of family law or tenancy law. A separate stream within the judiciary trained and tested in the field of finance, accounting, economics, business law, corporate governance and banking can only ensure that accountability judges can effectively and efficiently determine the disputes and fix liabilities. Another option can be to have a panel of judges to sit on accountability courts with representation of finance or corporate governance experts on it.

Lack of Accountability Training to Prosecutors: The most important stakeholder in the accountability drive is the government prosecutor mandated to present the case of the agency and assist the court in determining the guilt. Ordinarily, a criminal lawyer is assumed to be most suited for prosecution of white collar crime for his knowledge of criminal substantive and procedural law. Yet, in terms of facts, a white-collar crime is shaped by financial, accounting, banking and corporate governance matters. The prosecutors of FIA, NAB or Anti-Corruption Establishment have an inadequate knowledge of financial matters and have to rely on investigator’s understanding. Many a times, the Investigation Officer (IO) has to step into the shoes of the prosecutor to help explain the case. It is desirable that prosecutor’s eligibility criteria should focus more on modern finance than law.

Long list of evidence: Whenever documentary evidence is presented before the court, the maker and the presenter has to record his/her statement. Similarly the same person has to be cross-examined by the accused lawyers. Major corruption cases have thousands of documents as evidence. Some of the documents are either completely irrelevant for the prosecution though important for the investigators. In practice, the prosecution puts forward the entire volume rather than vetting the documents and only presenting those essentially needed for building up the case. This voluminous evidence delays the case. Similarly there are certain documents on which both the parties are not at variance. An amendment must be made in the law to allow the presenter of such evidence to be not cross-examined or even examined when the accused has consented to the veracity of such document.

Principal Issues of law: Double jeopardy is a concept in law which holds that no person can be tried twice for same offence. While the concepts might be valuable for ordinary criminal prosecution, in the context of white collar crime, double jeopardy is problematic. Many times, an investigation into one offence may be tied to facts which are already being tried in another offence. For reference, the looted money can be used to create assets in multiple places but the offence with which the looted money was generated maybe different. An offender may have committed ten offences to accumulate as asset. But once the acquisition of an asset becomes part of an investigation in a NAB or FIA case, the accused would take the plea of double jeopardy. There is a need to re-visit conceptual elements of criminal law in-order to align them with modern white-collar crime investigation and prosecution.

To conclude, white collar investigation and prosecution has to be viewed not within the lens of a criminal lawyer shaped by the ordinary criminal law. Rather, it has all to do with modern finance, economics and corporate/business governance. Our lawyers, prosecutors, investigators, judges and even the current scheme of law fails to treat white-collar crime as more than just a niche of criminal law resulting into faulty investigations and prosecution.

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Mohammad Yahya Farid
Mohammad Yahya Farid
Writer is partner of Farid & Farid Law Firm

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