Cases and Materials Relating to Corruption Issue 4 – July 2003 Editor John Hatchard A joint project of the Commonwealth Legal Education Association, The Commonwealth Magistrates’ and Judges’ Association, The Commonwealth Secretariat and Transparency International – Centre for Innovation and Research Funded by the United Nations Development Programme Editorial Contact: Transparency International Centre for Innovation and Research 27 the Quadrangle, 49 Atalanta Street, London, SW6 6TU, United Kingdom Tel. +44(0)207 610 1400 Fax. +44(0)207 610 1550 Email: [email protected] Website: www.transparency.org Table of Contents Editorial Review Pages 3 - 4 Constitutional Issues Khan Asfandyar Wali & Others v Federation of Pakistan and Others Pages 5 - 57 Criminal Law Hinchey v R Pages 58 - 101 R v Godden-Smith Pages 102 - 115 R v Natji Pages 116 - 123 Evidence R (on the application of Elliot) v Secretary of State for Home Department Pages 124 - 140 Khan Asfandyar Wali & Others v Federation of Pakistan and Others Pages 141 - 149 Sentancing S v Ngunovandu Pages 150 - 165 Rajendran s/o Kurusamy & ORS v Public Prosecutor Pages 165 - 166 S v Davids Pages 166 - 167 S v Mogotsi Pages 167 - 168 The Queen v Lai Kin-Keung Pages 168 - 169 The Queen v Chan Koon-Kwok Page 169 Attorney General v Carlyle Page 170 2 ISSUE 4: EDITORIAL REVIEW This issue of the Bulletin is divided into four sections covering Constitutional Law, Criminal Law, Evidence and Sentencing. Constitutional issues The creation of powerful anti-corruption commissions has already raised significant constitutional issues in a number of Commonwealth countries. See, for example, the case of Gachiengo and Kahura v Republic (Bulletin 1, page 7) where the High Court of Kenya ruled the Kenya Anti-Corruption Authority unconstitutional on the basis that it was contrary to the principle of the separation of powers for the body to be headed by a serving High Court judge. In Wali and Others v Federation of Pakistan (the NAB case), the Supreme Court of Pakistan was faced with a plethora of constitutional petitions attacking the constitutionality of the National Accountability Bureau Ordinance. The case raises issues concerning the separation of powers and independence of judiciary, violation of the fundamental rights of freedom of trade, business or profession, security of the person, safeguard from illegal arrest and detention, protection against retrospective punishment, freedom of movement, equality of citizens and other rights guaranteed by the Constitution. It is useful to compare and contrast the approach of the Supreme Court to that of the High Court of Kenya. Criminal Law The cases in this section deal with some key words and phrases commonly found in corruption offences. The decision of the Supreme Court of Canada in R v Hinchey contains a particularly useful discussion on the scope of a statutory provision prohibiting a government official or employee from obtaining any “benefit” from a person having dealings with the government. Does this extend to “a government employee who accepts an innocent cup of coffee or occasional lunch from a friend, or receives a lift from someone when caught in the rain”? The issue of whether the word “corruptly” involves an element of “dishonesty” is then examined in the cases of R v Harvey and R v Godden-Smith whilst in R v Natji, the court is concerned with the scope of the term “public body”. Evidence The use of presumptions to “reverse” the burden of proof was considered by the Court of Appeal of Hong Kong in Attorney-General v Hui Kin Hong (see Bulletin 1, page 34). This issue of the Bulletin contains two more significant cases on the issue, namely R (on the application of Elliot) v Secretary of State for the Home Department and the NAB case. It is of interest to note that courts in various Commonwealth jurisdictions seem to take a very similar approach to the issue. 3 Sentencing This issue breaks new ground by including a series of cases on sentencing in corruption cases. Whilst they in no way provide a “template” as such, they do serve to alert sentencers of some of the specific issues to consider when dealing with a corruption case. JOHN HATCHARD Editor 4 CONSTITUTIONAL ISSUES The National Accountability Bureau (NAB) in Pakistan was established by the National Accountability Bureau Ordinance of 1999 with the aim of eradicating “corruption and corrupt practices and hold[ing] accountable all those persons accused of such practices…”. The necessity for establishing the NAB with its wide-ranging powers is justified in the Preamble to the Ordinance as follows: WHEREAS it is expedient and necessary to provide for effective measures for the detection, investigation, prosecution and speedy disposal of eases involving corruption, corrupt practices, misuse/abuse of power, misappropriation of property, kickbacks, commissions and for matters connected and ancillary or incidental thereto; AND WHEREAS there is an emergent need for the recovery of outstanding amounts from those persons who have committed default in the repayment of amounts to Banks, Financial institutions, government and other agencies; AND WHEREAS there is a grave and urgent need for the recovery of state money and other assets from those persons who have misappropriated or removed such assets through corruption, corrupt practices and misuse of power and/or authority; AND WHEREAS there is an increased international awareness that nations should co-operate in combating corruption and seek, obtain or give mutual legal assistance in matters concerning corruption and for matters connected, ancillary or incidental thereto; [New paragraph inserted by a 2001 amendment] AND WHEREAS it is necessary that a National Accountability Bureau be set up so as to achieve the above aims The Ordinance provoked numerous constitutional petitions challenging the vires of the NAB on a wide range of issues, many of deep constitutional significance. In the following case, the Supreme Court of Pakistan took the opportunity of disposing of fifteen of these petitions. The many and varied issues for judicial consideration are set out in paragraph 2 of the judgment. In essence the main issues are as follows: 1. Whether the Federal legislature was competent to promulgate the Ordinance [para 170 et seq] 2. Whether the Ordinance creates a parallel judicial system in contravention of the Constitution of Pakistan [para 183 et seq] 3. The constitutionality of the offence of “wilful default” that is created with retrospective effect [para 198 et seq] 4. Whether the offence of wilful default negates the constitutional right to freedom of trade, business or profession [para 198 et seq] 5 5. The power of the Chairman NAB to freeze property [para 222 et seq] 6. The constitutionality of the "presumption of corruption" [para 224 et seq. This issue is dealt with below at page XXX] 7. Whether the Ordinance provides for the excessive delegation of power regarding the venue for trial [para 233 et seq] 8. The power of the Accountability Court to dispense any provision of the Code of Criminal Procedure [para 244 et seq] 9. The constitutionality of the enhanced period of detention for accused persons [para 248 et seq] 10. The constitutionality of the enhanced powers of arrest and discretion as to whether to grant bail enjoyed by the Chairman of the NAB [para 248 et seq] 11. Whether the Act contravenes the concept of the independence of the judiciary [para 265 et seq] 12. The independence and accountability of the NAB [paras 277 et seq] KHAN ASFANDYAR WALI & OTHERS v FEDERATION OF PAKISTAN AND OTHERS Supreme Court of Pakistan Mr. Justice Irshad Hasan Khan, C.J. Mr. Justice Muhammad Bashir Jehangiri Mr. Justice Muhammad Arif Mr. Justice Qazi Muhammad Farooq 9-13 and 16 April 2001 Cases referred to in the judgment Abdul Rahim v. Chancellor of West Pakistan University of Engineering and Technology PLD 1964 Lah. 376 Abdul Rashid v. Pakistan PLD 1962 SC 42 Abdul Razak Rathore v The State PLD 1992 Karachi 39 Al-Jehad Trust v. Federation of Pakistan 1996 S.C. 324 Arshad Mirza v. The State PLD 1988 Lahore 640 Badshah Hussain v The State 1991 P Cr.LJ 2299 Bashir v. The State P Cr.LJ 670 Benazir Bhutto v. The State PLD 1999 SC 937 Chenab Cement Product (Pvt) Ltd. and others v. Banking Tribunal, Lahore and others PLD 1996 Lahore 672 Faisal v Federation of Pakistan PLD 2000 Lahore 508 Federation of Pakistan v M. Nawaz Khokhar PLD 2000 SC 26 Federation of Pakistan through the General Manager, N.W. Railway, Lahore v. Syed Gadoon Textile Mills and 814 others v. WAPDA and others 1997 SCMR 641 6 Ghulam Muhammad v The State 1980 P.Cr.L.J. 1039 Government of Baluchistan v. Azizullah Memon PLD 1993 S.C. 341 Government of Sind v. Sharaf Faridi PLD 1994 S.C. 105 Haji Ismail Dossa v Monopoly Control Authority PLD 1984 Karachi 315 Hakim Khan and 3 others versus Government of Pakistan through Secretary Interior and others (PLD 1992 SC 595 Hasham Ali Shah PLD 1954 Lahore 769 Ikramuddin v The State PLD 1958 Kar. 21 Inayat Masih v The State Criminal Appeal No. 9 of 1993 Inayat Ullah and others v. M.A.Khan and others PLD 1964 SC 126 Jibendranath Kishore Acharya Chaudhry v. Province of East Pakistan PLD 1957 S.C. [Pak.] 9 Kazi Nizamuddin v The State PLD 1979 Karachi 294 Liaqat Parvez Khan v. Government of the Punjab through Home Secretary PLD 1992 Lahore 517 Malik Asad Ali v. Federation of Pakistan PLD 1998 SC 161 Malik Zafar v. The State 1989 MLD 4215 Mehram Ali and others v. Federation and others PLD 1998 SC 1445 Mir Ahmed v. The State PLD 1962 SC 489 Muhammad Anwar v.