Fighting corruption

June 05, 2020

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The writer is a lawyer and an academic.
The writer is a lawyer and an academic.

POLITICAL stalwarts on both sides of the aisle are in the process of reviewing the controversial National Accountability Ordinance, 1999, in order to make it ‘just and fair’, particularly focusing on those draconian provisions and unfettered discretions that violate the recognised principles of the criminal justice system, and become the tools of ‘political engineering’ and persecution of political opponents.

This begs the question: would the purported reforms help evolve a system of public accountability that would be not only impartial and transparent but also robust enough to substantially contain, if not exterminate, the pandemic of corruption that is gnawing at the very foundations of state and society? There is no monosyllabic answer to this vital question, given the host of variables, other than the nature and extent of the intended reforms, which would bear on the success or failure of public accountability.

First, anti-corruption legislation alone, no matter how fair and robust, may not be enough to cleanse the system. In fact, we have had a glut of anti-corruption legislations, from the Public Servants (Inquiry) Act, 1850, to the Prevention of Corruption Act, 1947, to the current NAO, 1999. Moreover, in addition to the countless codes governing our public and political offices, we have also signed a myriad international conventions dealing with corruption and related ills. Yet, the bug of corruption does not seem to have been contained, let alone vaccinated against. Rather, it has mutated into many forms, metastasising across the body politic. Even the top organs — executive, parliament and judiciary — are not free from this plague, if the misuse of discretionary powers, horse-trading, and ‘political’ judgements are seen as a species of corruption.

Second, mere reliance on the extensive use of coercive measures may not help root out corruption. Since the 1950s, our military dictators have diagnosed corruption as a malaise spread by a ‘dirty nexus’ between the bureaucracy and its political masters. As a result, their favourite panacea has been to target the duo. But while hundreds of ‘tainted’ bureaucrats were summarily removed from service by successive governments, the public service saw no improvement in terms of efficiency or integrity. Likewise, a host of politicians were prosecuted on corruption charges, but many of them were either ‘co-opted’ by the same or subsequent rulers; or they were acquitted by the courts for various reasons — mainly due to insufficient evidence.

NAB reforms alone won’t help. A broader reform agenda is needed.

True to his peerage, Gen Musharraf also employed a lethal combination of muscular power and legislative sanction to launch his anti-corruption mission embedded in his seven-point agenda. Thus, he promulgated an ordinance in 2000 to ‘cull’ the bureaucracy by way of its “dismissal, removal, and compulsory retirement from service”. And to end corruption and recover the looted money, he brought the NAO, 1999, which was more in the fashion of Henry VII’s Act of Attainder.

The NAO, treats an accused a priori guilty, usurps his liberty, denies him bail, remands him for months, seizes his property at will, hauls him on tenuous links; and (until recently) provided him — the ‘corrupt’ — with the convenient tools of ‘plea bargain’ and ‘voluntarily return’ (of the ill-gotten wealth) to seek an (‘honourable’) exit. More importantly, the NAO created an enforcing agency, the National Accountability Bureau, or NAB, headed by a chairman who enjoys czar-like powers. Yet, for all the draconian powers at its command, NAB’s 20-year record has been less promising on the anti-corruption front, and more pronounced on the political front. While corruption is alive and kicking, economy and democracy are struggling.

Third, corruption thrives in a legal flux. It is because the laws take years to ‘ingrain’, and constitutions need decades to ‘conventionalise’. But unfortunately, Pakistan has been literally a petri dish of constitutional experimentations. We have tried a plethora of legal orders — presidential, parliamentary, hybrid, praetorian, and so on — but each order was supplanted at the altar of power politics. As a result, a rule-based public administration never got a chance to take root, leaving the bureaucracy at the mercy of a Byzantine machinery controlled by a bevy of power brokers — politicians, financiers, generals and so. But still, we haven’t learnt any lesson from the mindless revisionism. Efforts are on to bring the current post-18th Amendment Constitution back to the drawing board and again throw the country into a state of politico-constitutional limbo.

Finally, some undue enrichments are not culpable due to legal camouflaging. Our history is full of instances of rulers conferring favours on their cronies in the garb of economic, fiscal or public policy. Among the familiar bounties are tax exemptions, amnesty schemes, targeted subsidies, export incentives, write-offs, residential/commercial plots and so on. But since these ‘entitlements’ are policy-coated, multifaceted and deep-rooted, they are difficult to detect, let alone criminalise. Therefore, they are more detrimental to public finances. The recent sugar and wheat scams are a case in point. They are the re-enactment of old frauds, but it would still be hard for investigators to pin down the actual culprits, given the layers of decision-making, the cross-party spread of beneficiaries, and the firewalls of policies and condoning precedents.

In the light of the above review, let’s attempt answering the question — do the intended NAB reforms hold any promise? NAB reforms alone won’t help. A broader reform agenda is needed to address the systemic ills — legal, administrative, regulatory, supervisory, prosecutorial, and judicial — to tackle the menace of all-round corruption. To act on this agenda, concrete measures are required: never derail the train of democracy, respect the trichotomy of powers, fortify institutional checks and balances, minimise discretionary powers, strengthen parliamentary supervision, protect and autonomise the bureaucracy, end the culture of privileges and undue entitlements, and last but not the least, stop tampering with the Constitution for narrow personal, political or institutional interests.

The writer is a lawyer and an academic.

shahabusto@hotmail.com

Published in Dawn, June 5th, 2020