- The country needs new accountability laws
During his address to the Constituent Assembly on 11 August 1947, Quaid e Azam Muhammad Ali Jinnah said: “One of the biggest curses from which India is suffering— I do not say that other countries are free from it, but I think our condition is much worse— is bribery and corruption. That really is a poison. We must put that down with an iron hand and I hope that you will take adequate measures as soon as it is possible for this Assembly to do so.” When we trace the roots of corruption here, they go back to the colonial period when the British awarded lands and titles to their loyalists. This led to nepotism and corruption in the region. According to the World Economic Forum’s Global Competitiveness Report (2007-08), corruption is identified as the third largest problem for companies doing business in Pakistan. Corruption has been consuming urban Pakistanis more than perhaps any other national issue in the recent past. The general perception is that despite the multitude of laws and bodies actively investigating corruption in the region, white collar crime has increased over the years. This is alarming for those in power.
Apart from parliamentary oversight, there are several legal anti-corruption instruments including the Pakistan Penal Code 1860, Prevention of Corruption Act 1947, Public Representatives (Disqualification) Act 1949, Elected Bodies (Disqualification) Ordinance, 1959, Anti-Corruption Establishment Act, Federal Investigation Agency Act, Ehtesab Act and the National Accountability Ordinance of 1999. Moreover, to successfully expose Benami transactions and to deal with individuals arrested under the NAO, the Law and Justice Ministry also recently prepared two bills, ‘The Benami Transaction (Prohibition) (Amendment) Bill 2019 and the National Accountability (Amendment) Bill 2019, which will be presented before the Cabinet for approval. However, many analysts believe that these anti-corruption mechanisms have not achieved the desired outcome. And, when corruption affects the institution of the last resort, the judiciary, the nation really loses hope. This is when we observe an unfair judicial system, which not only affects the individual litigant, but the whole economy. As a result, domestic and foreign investment shies away in fear. The influential and powerful have a greater chance of easily getting away with anything if they pay the right price.
One cannot overstate the importance of whistle-blowers . They are the main force behind unearthing mega corruption scandals. And we have seen how previously the UNCAC 2005, calls upon states to provide adequate protection and incentives to all whistle-blowers. Similarly, international research shows the impact on corruption is strongest if we strengthen supreme audit institutions
Only Hong Kong and Singapore among Asian countries, have been comparatively successful in reducing corruption due to the political commitment of their leaders, along with impartial implementation of many of anti-corruption measures. This shows the importance of political will in successful implementation of anti-corruption reforms. On the other hand, Susan Rose-Ackerman in her book, Corruption and Government, argues that one must understand that corruption is not a problem which can be attacked in isolation. Indeed, the government may need to establish a strong credibility mechanism by punishing the highly visible corrupt officials. However, the writer argues that the main aim of such prosecutions should be to attract notice and public support, and not solve the underlying problem, and anticorruption laws can only provide a background for more important structural reforms.
In Pakistan, the NRO was perhaps the worst law ever made to legalize mega-corruption in the country. In fact, we saw significant back sliding in the accountability effort after the announcement of this ordinance. Practices of good governance flourish in a necessarily corruption-free situation. Pakistan, unfortunately, is way down the ladder. Corruption is highest in development projects and procurement (including defense and public sector corporations) and bank loan write-offs. Legally, the civil and criminal codes, legislation and administrative procedural regulations, should clearly specify what constitutes corruption and associated penalties. The NAB law requires a wholesale review by Parliament to restrain it from opening an investigation without proper inquiry and evidence. Amendments are required with reference to physical remand in NAB cases. For instance, Section 24 of NAO 1999 grants the NAB chairman absolute powers of arrest to investigate an accused for 90 days. Whereas, under the CrPC, physical remand cannot exceed 15 days. This is an area which also needs to be fixed as many persons released after remand were considered not guilty, as in the Aleem Khan case.
The law is meant to benefit the public by recovering their looted money. Imprisoning corrupt politicians without any successful recovery will not benefit anyone. It will only be an additional cost on the state. If the condition of imprisonment is attached to a plea bargain, no corrupt person will ever return the amount. In fact, it will only result in increased abscondence by sending the looted amount abroad from where it is impossible to recover. Hence, the plea bargain provision should remain; but should be made easier. The plea bargain law has already received significant criticism as many view it as relief for the accused. The State has made recommendations for change. NAB should improve the law with better SOP’s. This will empower the courts to intervene rather than only leaving it to the NAB Chairman.
The law requires reform. Fixing the anti-corruption legal system is the only way for the government to save the declining economy. The PTI government took collective action and made some recommendations for amending the anti-graft law. This was viewed as a welcome step, but still there is a long way to go. While we look back at history, there is plenty of evidence suggesting how the struggle for power has often provoked the government to misuse the law for its own interests. And, this ultimately results in a misuse of state institutions. Under these situations, anti-corruption institutions are frequently abused by the people in power to persecute opposition parties.
There is no doubt that, Pakistan’s anti-corruption institutions have largely been used by those in power for many years to use the strategy of weakening their opponents. Institutions, including the EC and NAB were established in the wake of overthrowing democratically elected governments by non-elected actors. The military, the government nor the judiciary has ever earnestly intended to grant full autonomy to any accountability organization. This is a matter of serious concern. And, every office has originally sought to bring the operation of the given organizations in line with their own set version of accountability and institutional interests. But, through the emergence of a strong civil society, vociferous media and a newly independent judiciary, there exists a stronger guarantee for any future programme of accountability.
One cannot overstate the importance of whistle-blowers . They are the main force behind unearthing mega corruption scandals. And we have seen how previously the UNCAC 2005, calls upon states to provide adequate protection and incentives to all whistle-blowers. Similarly, international research shows the impact on corruption is strongest if we strengthen supreme audit institutions. In such crucial times, when the country is economically struggling and is overburdened with external debt, there is an urgent need for new laws to be legislated in order to create a business-friendly environment in the region.
