What the Panama leaks case has demonstrated, above everything else, is the need for an accountability mechanism to take timely notice of corruption in high places and which can be applicable not only to politicians and bureaucrats but also to holders of exalted positions in the judiciary and defence services.
This is not a new discovery of an essential facet of responsible governance; only the matter involving Prime Minister Nawaz Sharif and his clan has underlined the urgency of devising a comprehensive accountability law. Otherwise, corruption in the upper echelons of the state has been in public debate for more than a century — that is, if we treat the corruption of the Mughal and East India Company durbars as closed chapters and put colonial rule — one of the worst forms of institutionalised corruption — aside.
Corruption in business and state services grew rapidly during the last two world wars (1914-1918 and 1939-1945). As a result, we find Indian leaders on the eve of partition worried about the impact on public life of the ill-gotten fortunes made by many during the war, with Jawaharlal Nehru thinking of a law to deal with the neo-rich and Liaquat Ali Khan proposing to tax them.
The irony of history is that instead of eradicating corruption from business and services, the politicians themselves started yielding to the temptation of amassing unearned wealth.
The Quaid-i-Azam gave a call to fight the biggest curses the subcontinent was suffering from — bribery, corruption, nepotism and favouritism — in his very first address to lawmakers on August 11, 1947. Successive governments, elected as well as those appointed by coup-makers, have made numerous laws and regulations that have failed to achieve the desired results because of structural flaws in these measures and their selective application.
Soon after independence, the Prevention of Corruption Act of 1947 was enforced. It is essentially an anti-bribery law and has largely been used against state employees who have no protectors or allies in the higher layers of the administration. Political corruption has only marginally been touched by this law.
Two years later came the Public and Representative Offices (Disqualification) Act (PRODA) that was designed to punish holders of public and elective offices for corruption, jobbery, bribery, favouritism, nepotism, and embezzlement. The measure was selectively used against opposition elements to the extent that its repeal figured high on the agenda of the Constituent Assembly members who tried to clip Governor General Ghulam Muhammad’s powers in 1954.
The Ayub regime promulgated the Elective Bodies (Disqualification) Ordinance in 1959 to punish holders of public office or members of any elective body for misconduct by disqualifying them for seven years. Ayub Khan’s main objective was to put political leaders out of action and many of them obliged him by opting for banishment from politics for seven years instead of facing trial. (On the expiry of the sentence many of them surprised Ayub Khan by returning to the political arena and organising a movement that led to his downfall.)
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Ziaul Haq revised the Ayub formula for getting rid of politicians who were not with him and had them disqualified by mixed civil-military tribunals. The politicians who supported his plan to postpone the solemnly promised election under the slogan of ‘accountability first’ were not only kept free to make personal fortunes but were also encouraged and helped to do so.
As if the failure of selective use of flawed accountability measures devised during 1947- 1990 was not enough, the first Nawaz Sharif government set up special tribunals to haul up Benazir Bhutto for misconduct and only succeeded in being condemned by national and international observers for launching a witch-hunt.
The strategy was changed in 1997 when an Ehtesab Act was adopted and a Chief Ehtesab Commissioner with wide powers appointed. The law was applicable to the judiciary and the armed forces as well as to holders of public offices and bureaucrats but it was not sincerely implemented.
Finally, Gen. Musharraf came up in 1999 with the National Accountability Bureau (NAB) Ordinance for investigating complaints of corruption against holders of public office or any citizen. A usurper of power, however, could not possibly come with clean hands. His bona fides became suspect when his accountability chief, Gen Amjad, chose to quit his job instead of making exceptions in case of the favourite cows. The law also gained considerable notoriety because of the rather generous use of the plea bargain provision which the people saw as an escape route for the corrupt.
The Panama case has underscored the possibility of NAB’s susceptibility to political power though the NAB strongly rejects all charges levelled against it.
Now we have come to the point that a heavy-footed and easygoing administration, known for dragging its feet over all important legislative proposals, claims to have finalised a new accountability bill, which has almost completely been accepted by all parliamentary groups. And the Senate has lent its weight to the call for a comprehensive accountability law that does not recognise any holy cows.
When we look back at the history of anti-corruption campaigns in the country we are struck by the fact that political parties have generally concentrated on laying snares for the other. This was amply visible during the 1980s and early 1990s when the main parties were proposing accountability periods that suited them. If one party wanted accountability to be done for the period since 1978, the other party wanted the period to begin in 1988.
However, realising the pressure for a fair accountability regime both PPP and PML-N had accepted the need to bridge the gap between the draft bills they had submitted in the National Assembly. If the Assembly had not been dissolved in 1996, a satisfactory accountability measure might have materialised. That this did not happen is another reminder of what the state loses when the democratic process is disrupted.
The problems in implementing accountability laws experienced so far include, besides selective application, difficulties in securing evidence of wrong doing that is available only with the government and it declines to share evidence. There was a case in which the Supreme Court was denied access to the record of parliamentary debates on a constitutional provision.
The executive always has possibilities of manipulating or influencing investigations. Of course, some institutions possess information that even government departments do not have but the use of this information depends on the keepers’ own interest in any given matter. The new law must, therefore, ensure not only complete autonomy of the accountability commission but also its access to all the record and the data it needs to properly perform its job.
Our lawmakers should realise that the fight against corruption in high places has been on the world’s agenda for many years. They may be able to learn something from the British accountability laws made over the last couple of decades and the debates going on in Europe on eliminating or curtailing the immunities political leaders enjoy while in office (such as the French presidents), and the efforts made in India to provide for judges’ accountability.
While discussing accountability of elected representatives the fact of their being chosen by the people is generally ignored. It is necessary to consider how much weightage should be allowed to representatives whose corruption is discovered after they have been elected. Sometimes the people are blamed for choosing bad persons to represent them.
Democracy will have better chances of flourishing in Pakistan if the wiser elites stopped sneering at people’s choice of their representatives or candidates for high public offices. One cannot do better on this point than recalling a Supreme Court observation in Malik Feroze Khan Noon vs the State:
“The question whether a fool or a sage, a saint or Machiavelli should be chosen as Prime Minister of the country is the concern of the Parliament and the President and in that matter neither of them needs any judicially carved pronouncement or advice.” (Quoted in Hamid Khan’s, A History of Judiciary in Pakistan)