Public interest litigation for political corruption

Recent media reports reveal corruption on a massive scale by past and present ministers, state-ministers, and MPs who have allegedly indulged in accumulating colossal wealth misappropriated from public and private sources by abusing their position of public power. The present government has excluded some of these allegedly corrupt politicians to enhance its clean image. The Anti-Corruption Commission (ACC) has commenced investigation in some instances of corruption that may lead to legal proceedings. The civil society members like the mass media and NGOs, particularly Transparency International Bangladesh (TIB) have kept up pressure to bring alleged corrupt politicians to book. These initiatives are causes for optimism in Bangladesh, whose development has been stultified and good governance hamstrung due to the cycle of endemic corruption with impunity under political patronage.    
The present revelation of political corruption, if considered in conjunction with corruption by political personalities of previous governments, imparts a systematic and institutionalised trend of corruption by some politicians in position of power. The slow progress of ACC investigation and mere publicity reaction of the civil society may not be enough deterrent to arrest political corruption. These politicians abuse their public authority for self-gain, which has marginalising effect on rule of law and due process, fairness and justice, mass welfare and well-being, human rights and dignity, humane living and security, and non-discriminatory and corruption-free public services. These are fundamental constitutional guarantees of all citizens but are invariably eroded as a consequence of corruption by some politicians for personal benefit. Such corruption and its effect clearly constitute a prime cause for public interest litigation (PIL) in the High Court Division.
PIL can be filed in any court of law for the protection for any public interest. It is a well-recognised and widely practiced public activism to solicit the attention of the judiciary to stretch its arms of law to protect public interest. The underlying intent of PIL must exclusively serve the benefit and interest of public at large. Chronic corruption by holders of high political offices affecting public interest at large comes well within the purview of PIL. Any aggrieved or concerned public spirited individual or organisation can take this judicial initiative in the same manner as a writ petition, in addition to and distinct from ACC initiatives. A writ petition may also constitute PIL as they both make specific prayers. Both legal actions usually seek specific remedies of (a) bringing the alleged corrupt politicians to face the force of law, (b) ordering ACC for a time bound completion of investigations and expeditious legal actions against all corrupt politicians for their alleged corruption-induced enrichment, and/or (c) directing the government to provide necessary resources for ACC to accomplish its task and release information about unconscionable conducts by alleged corrupt politicians in public domains. Even the court itself can take cognizance of various media reporting on corruption by politicians while in power and proceed suo motu to try them.
Recently there has been an unprecedented proliferation of PIL in many developing countries, notably India and Malaysia, where judges are engaged in judicial activism in PIL over corruption in general and political domains, which has received overwhelming public support and enhanced public confidence in the judiciary. These judicial precedents offer invaluable legal resources in anti-corruption PIL in Bangladesh. This short write-up cannot analyse them but highlights their underlying principle that prompted courts to admit PIL against corruption.
The Indian Supreme Court has delivered a number of scathing PIL judgements, which have far reaching relevance to anti-corruption bid in Bangladesh. In its appeal judgement of 2 February 2012 in the landmark PIL - 2G Spectrum Scandal – for the prosecution of A Raja, former minister for communications and IT (2007-2009), for his alleged corruption in issuing licences. The Bench of Justices G S Singhvi and Asok Kumar Ganguly held that all citizens had a right to seek sanction to prosecute a public servant accused of corruption and that every competent authority should take appropriate action on the citizen's representation for sanction of prosecution of such public servant in accordance with the guidelines set by the Supreme Court in the Vineet Narain verdict in 1998. Justice Ganguly separately opined that the anti-corruption law must be interpreted in such a manner as to advance the causes of honesty, justice, and due process of law as opposed to the escalation of corruption.
The Supreme Court clearly interfered with a government policy affair under an act of Parliament, requiring government permission to prosecute public servant (Prevention of Corruption Act 1988, s19). The Court rejected this legislative requirement by exercising its judicial review power. It held that when a government policy, law, and/or conduct of its servant is demonstrated to be contrary to public interest or violative of the constitution, 'it is the duty of the Court to exercise jurisdiction in larger public interest and reject the stock plea of the state that the scope of judicial review should not be exceeded beyond the recognised parametrers. It is the duty of the Court to ensure that the institutional integrity (good governance and honesty) is not compromised by those in whom the people have reposed trust and who have taken oath to discharge duties in accordance with the Constitution and the law without fear or favour, affection or ill-will and who, as any other citizen, enjoy fundamental rights but is bound to perform duties' (The Hindu online, 2 February 2012 links to the full text of the judgement). In a similar vein, the High Court of Madhya Pradesh admitted and dealt with a PIL on 6 September 2013 involving the alleged corruption of 11 serving and former ministers and 50 bureaucrats (reported in The Hindu, 7 September 2013).
Some alleged former ministers and state-ministers themselves testified before ACC about their involvement in private business and companies to gain profit or emolument, which are prohibited under the Bangladesh Constitution (s147:3d). They were allegedly involved in corrupt conducts and malpractices to enrich themselves and their relatives in total defiance of their assumed constitutional oath and obligations to conduct their public services with professional integrity and personal honesty. This all-pervasive corruption in the upper level of political administration has economic, social, and human right consequences for public at large. It has led to misallocation of resources undermining development; nepotism, favouritism, and bribery in granting licences, permits, real estate plot allocation, and public employment (equal opportunity is a constitutional guarantee under s29); misappropriating social welfare aggravating poverty and worsening human development; and arbitrary withdrawal of cases denying the constitutional right to the protection of law (s31).
Treating these corrupt acts as a law enforcement issue warranting criminal response, which ACC is undertaking, has little success and is not enough. These corrupt acts also manifest a crisis in public governance that causes mass victimisation and inhuman sufferings, corrupts social fabric and ethical values, and denies legitimate public expectations. These outcomes of corruption establish an inseparable nexus with human rights, whose jurisprudential foundation is deeply rooted and firmly established. The public at large is entitled to receive corruption-free public services under the Constitution and Anticorruption Commission Act. This crisis in public humane governance comes within the scope of PIL or writ under section 102 of the Constitution. Such a move is likely to lead judicial activism in enforcing certain rights for the citizenry, transparency and accountability in executive decision-making, and thus maximising public interest and minimising corruption. The politicians who have allegedly accumulated huge wealth while in the position of power should know best the sources of their wealth and discharge the burden of proof before the court that they have derived their wealth from lawful means.
The institutional and legislative framework for combating political power-sponsored corruption in Bangladesh is far from being satisfactory. The main anti-corruption agency, ACC, is under-resourced (inadequate staffing and funding) and often struggles to act independently free from political interference despite its legal autonomy. The role of political influence and financial clout of some powerful politicians allegedly involved in unbridled corruption to subvert any anti-corruption initiatives against them cannot be ruled out altogether. A recent interview with an important political personality, who dubs the media revelation of alleged political corruption 'information terrorism' (Amader Somoy 13-14 March 2014) is indicative that some political mindsets are yet to be tuned and amenable to the ethos and essence of transparent and accountable parliamentary democracy. They would continue to defend their alleged amoral conduct politically which is legally indefensible.
Given that ACC's fight against corruption falls short of being proactive and preventive, there appears to be no palatable option for bringing the alleged corrupt politicians speedily other than to rely on PIL or writ filed by any public interest motivated entity. TIB may appropriately take the lead to translate its reactive anti-corruption campaign into an active crusade. Alternately a writ with the High Court Division seeking an order on ACC and the government to bring alleged corrupt politicians to justice expeditiously may be lodged. PIL/writ may well trigger anti-corruption judicial activism in public interest. Should this eventuate, it will be the ultimate and effective sanction against the use of political power to camouflage corrupt-enrichment.

The writer is Professor of Law, Macquarie University, Sydney, Australia.