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Problem of corruption

April 02, 2012

CORRUPTION has haunted Pakistan since its birth. Different governments have been dislodged on the basis of such allegations and every institution, it is said, is victim to it.

Why, then, has our state apparatus failed to root out this menace?

Pakistan’s anti-corruption laws do not define corruption. Before the promulgation of the Ehtesab Ordinance, 1997, even an explanation of the term ‘corruption’ was missing from the legislative framework. The Ehtesab Ordinance explained ‘corruption and corrupt practices’ through six characteristics; it was superseded by the National Accountability Ordinance (NAO), 1999, which explains ‘corruption and corrupt practices’ through 12 characteristics.

The Supreme Court interpreted corruption in 2008 while adjudicating on a case investigated by the National Accountability Bureau (NAB), as “…an act which is done with intent to give some advantage inconsistent with law and wrongful or unlawful use of official position to procure some benefit or personal gain. (The) expression corrupt practice(s) is a series of depraved/debased/morally degenerated acts” (The State Vs M. Idrees Ghauri).

The problem is that this definition is limited to government servants. It is undisputed that corruption has various forms and limiting the term to a simple definition is indeed a complex job. But if our laws do not take into account the various nomenclatures of corruption, how will the institutions enforcing those laws detect corruption?

Up until 1997, our legislatures only perceived and focused on anti-corruption legislation targeting public servants: people employed by the state, such as every officer of the police, the bureaucracy and a court of justice or land or tax official, but not an elected representative. (Commissioned officers in the military are public servants but are exclusively regulated by a special law as will be discussed later.)

The Prevention of Corruption Act 1947 (POCA) was the first anti-corruption legislation adopted by the constituent assembly. It applied only to public servants and remains in force, but defines criminal misconduct rather than corruption.

The wafaqi mohtasib’s (ombudsman) laws and provincial anti-corruption laws, such as the Punjab Employees Efficiency, Discipline and Accountability Act 2006, and the Sindh Prevention of Bribery and Corruption Act 1950, are no different.

Provincial anti-corruption laws are only applicable to public servants employed by the provincial governments and cannot be used to hold the executives of a province, during or after their tenure in office, accountable. The ombudsman’s laws suffer from a similar deficiency.

Another issue is that even within its defined parameters, provincial anti-corruption establishments do not function properly.

For example, in 2010 the office of the ombudsman Punjab, according to its annual report, received 123 complaints pertaining to the officials of the anti-corruption establishment in Punjab alone.

The Federal Investigative Agency, created by virtue of the Federal Investigative Agency Act 1974, has an anti-corruption wing which deals with certain offences relating to corruption in connection with matters concerning the federal government. But the FIA is vulnerable to political interference.

The provincial anti-corruption establishments, the offices of the ombudsman and the FIA suffer from a further inability to proceed against certain institutions that are regulated by dedicated laws, such as medical or legal practitioners or the army.

These institutions do not define ‘corruption’. And even otherwise, Pakistan’s institutions rarely proceed against members of their own ranks, thereby resulting in zero or rare convictions that render the institutional laws ineffective.

The problem in Pakistan is that while there are abundant anti-corruption laws, they are outdated and preclude a certain class of people or institutions from being drawn into their purview, thereby granting them a sort of implied immunity.

The Army Act 1952, for instance, does not define the word corruption or include the classification ‘corruption or corrupt practices’. Rather, it defines ‘illegal gratification’ as an offence.

Resultantly, none of our anti-corruption agencies or courts can investigate a serving army officer for alleged corruption.

Meanwhile, the Army Act provides immunity to all serving members of the armed forces from investigation, arrest, detention or trial from all other courts or investigative agencies.

The National Accountability Ordinance, 1999, was one law which brought a hitherto untouched class of people into the domain of accountability. As the SC observed in the Asfandyar Wali’s case, “For the first time, members of a hitherto untouchable class of influential and powerful persons, not merely restricted to holders of public office, but also include bankers, businessmen, industrialists, bureaucrats, and other persons, who are involved in corruption and corrupt practices as defined in the NAB, fall within the purview of accountability in an effective and coherent manner.”

Under the NAO 1999, NAB has been conferred with unprecedented powers to investigate and prosecute cases involving corruption. It is the only accountability institute functioning somewhat effectively in this area. But NAB has its limitations. Its chairman is appointed by the president in consultation with the leader of the house and the leader of the opposition. He is therefore legally powerless to bring the president, prime minister, leader of the opposition or a provincial chief minister, even after the expiry of their service, into the domain of accountability.

Lawmakers introducing the Holders of Public Office (Accountability) Bill, 2009, to repeal the NAO 1999 believed that elected representatives or the holders of public office (i.e. people who have served as presidents, prime minister, governors etc) do not technically fall within the accountability purview of the existing laws. The bill, whose name was later changed to the National Accountability Commission Bill (NAC), was thus introduced.

Since then, however, it has been lying pending with the National Assembly’s Standing Committee on Law and Justice. The proposed bill was also seen as a disguised attack on the existing NAO 1999 by proposing to replace it with the NAC Bill, thereby rendering many of the effective provisions of the law defunct.

One of the problems with Pakistan’s fight against corruption, thus, is the multiplicity of (mostly outdated) anti-corruption laws.

Moreover, our lawmakers must realise the importance of whistle-blowing laws which guarantee indemnity to a public servant or any other person exposing instances of corruption. These would give public/government servants the strength to expose corruption without fear of being persecuted by the state itself.

Furthermore, our legislatures have enacted tailor-made anti-corruption laws to please some institutions and keeping self-interest in mind. This is a criminal attitude. Then, our legislatures have not empowered anti-corruption institutions with autonomous powers. As a result, the state and its institutions have been subjected to a lot of political interference which deters free and fair investigation.

If anything is to blame for the current helplessness against corruption, it is the insensitivity and laziness of successive legislatures in authoring weak, limited or no anti-corruption legislations. If we are to effectively root out corruption, our legislatures hold the key.

The writer is a lawyer based in Lahore.