Strategically Speaking
Has TAC lost its tack?
IT'S all but certain the direction the Truth and Accountability Commission (TAC) is heading towards. It very nearly suffered a premature end when the High Court division declared its formation illegal and unconstitutional. It has been given a month's lease of life by the apex court of the land.
All good laws must originate from moral scruples, but that is hardly the case, if one were to believe those who seem to think that even good laws have their origins in bad moral, not to speak of the bad laws. Therefore, one is at a loss to characterise the Voluntary Disclosure Ordinance based on which the TAC was set up. Very few will contest the fact that it deserves the verdict that it got from the High Court division.
What makes the Ordinance a bad regulation is not that it was patently unconstitutional, for it was every bit so, but that it went against the very principle of natural justice. And when one gets to hear eminent lawyers (thankfully they are far and few between), particularly those that were involved in its formulation if not its conceptualisation, supporting its case, who find no fundamental flaw in it, one cannot help but wonder whether the very concepts of justice and law have undergone a change.
While one had been led to believe initially that perhaps the motivation behind the idea was pious, the provisions of the Ordinance suggest that the mechanism employed was grossly flawed. However, some have even gone so far as to question the very intention behind the scheme; apart from the fact that it was blatantly discriminatory in nature, it smacked of ulterior motives, they think.
While one would not wish to question the motive, as an ordinary citizen with very little knowledge of law and its intricacies, one cannot but question the judgment of those that saw it fit to superimpose on the judiciary a quasi-judicial arrangement, to which it was hoped the guilty of all shades, deportment, colour and calling, would supplicate, and make a clean breast of their guilt, and having paid for their "misdemeanor" by putting back into the public coffer what they had gotten illegally, go scot-free, perhaps back to what they had been doing and what they are adept in doing, amassing illegal wealth, once again.
While the jurists and legal experts have cited the relevant provisions of the Constitution whose violation has rendered the ordinance ultra vires of the law, to ordinary citizens the contradictions seem so glaring that one doesn't have to be a Justinian or a Wendell Holmes to see the limitations of TAC.
How is it possible to have different dispensations, in the same system, for the same crime? How interesting it is to read the statement of persons holding high office, given to the media just before the promulgation of the ordinance, that the commission would consider the cases of businessmen with leniency considering their contribution to the national economy. So, if you contribute to the economy you can get away with your illegal acts by owning up to it and reimbursing the ill-gotten wealth to the government treasury? And all this would be done in camera, and the public would not know the identity of these criminals. And since the ordinance had no retrospective effect, those already tried and convicted for similar crimes cannot make use of the new provisions. Does it not make the Ordinance a "bad law?"
As far as its usefulness is concerned, if one were to read between the lines of the TAC chairman's statement, the response has been less than what had been expected -- more so from politicians. We were given to understand that the commission was to bring under its ambit those among the more than 200 alleged corrupt on the list that had not been charge-sheeted till the setting up of TAC. We are not aware if that has been done, and what has been the result.
However, to have expected that businessmen and politicians would come forward on their own volition and acknowledge their guilt, when many of those already indicted on charges of corruption have had their charges dropped for lack of evidence, was hoping for the impossible. The major disincentive is that, in spite of being spared other punishments as applicable in the case of a culpable offense, a person choosing the option of voluntary disclosure renders himself ineligible from taking part in the forthcoming election. The fact that many ex-parliamentarians are businessmen (for many in Bangladesh, politics has become a lucrative business) no wonder that there were no takers.
Of those that have chosen to seek recourse to TAC most are public servants, and those implicated in the statements of these self-confessed corrupt. And the money that has been paid to the state exchequer is peanuts compared to the millions that have been actually made through illegal means. How, for example, can the TAC be sure that the amount of illegal money, as confessed by an "accused," is correct? How is it sure that it is not actually thirty crores -- not three crores (as confessed) -- that he has amassed illegally?
While the expectations of the chairman of TAC have not been met, neither has the arrangement made any impact on the prices of essential commodities, which the government had hoped it would if businessmen were given special dispensation. We know of no businessman facing charges of corruption choosing the TAC road to absolution and freedom.
The purpose of such commissions in other countries is quite different than that which our CTG has been motivated by. As we had stated in these columns before, truth commissions are generally, "bodies set up to investigate a past history of violations of human rights in a particular country;" some of their main characteristics being, "they focus on the past and investigate a pattern of abuse over a set period of time rather than a specific event."
In a society where honesty is not always the best policy, there can be little rationale for establishing committees that are generally seen as "letting off" rather than holding the corrupt to account. Setting up commissions to reduce the incidence of corruption, and whose provisions are discriminatory, runs the risk of being misconstrued as a measure to dispense law in a selective manner.
One would hope that the government would see the fallacy of the idea and dissolve the commission before its term of six months is over in order not to set a bad precedent. And Providence knows how good we are in replicating bad examples -- and that too with great deal of pride.
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