Preface

Corruption seems to have spread like cancer on the body-politic of Pakistan. Internationally, Pakistan has earned the dubious distinction of being labeled recently as the second most corrupt country in the world. Therefore, both the need and demand to prevent corruption and corrupt practices and promote the process of accountability are incontrovertible. The question -- a public policy issue -- is how best to do so? The President of Pakistan has recently promulgated the Ehtesab [Accountability] Ordinance, 1996 to eradicate corruption and corrupt practices from public offices in Pakistan. Is this legislative endeavor permanent and is it enough to deal with the perennial problem of corruption, or does the country need to take additional measures to achieve its objective to eradicate corruption more effectively? A substantive issue underlying these process-oriented queries is the scope of corruption. Is corruption limited to financial dishonesty or does it include political and administrative abuse of power? The Accountability Ordinance defines the term "corruption and corrupt practices" in its broadest sense.

This paper has a dual objective: (1) To examine the newly promulgated Accountability Ordinance with a view to analyzing its continuity and efficacy, and (2) to outline other measures that need to be taken by the leaders and policy makers of Pakistan to make their effort to combat corruption achievement-oriented.

 Background and Prospect

The promulgation of the Accountability Ordinance is a result of the recent dismissal of the Bhutto government and the dissolution of the National Assembly by President Leghari. President Leghari, on November 5, 1996, issued a Presidential Proclamation dismissing the Bhutto government and dissolving the National Assembly on the ground, inter alia, that "corruption, nepotism and violation of rules in the administration of the affairs of the government and its various bodies, authorities and corporations has become so extensive and wide-spread that the orderly functioning of Government in accordance of [sic] the provisions of the Constitution and the law has become impossible and in some cases, national security has been endangered ... Members of the Government and the ruling parties are either directly or indirectly involved in such corruption, nepotism and rule violations." The President’s Proclamation indicated that a Bill for prevention of corrupt practices had been moved in Parliament by the Bhutto government but alleged that it was a disguised "assault on the judicial organ of State" and an attempt to destroy the independence of the judiciary guaranteed by Article 2A of the Constitution and the Objectives Resolution. It further alleged that the Bill was: (i) not brought to the attention of the President as required under Article 46(c) of the Constitution, and (ii) designed not only to embarrass and humiliate the superior judiciary but also to frustrate and set naught all efforts made, including the initiative taken by the President, to combat corruption and to commence the accountability process. The President’s initiative to combat corruption was, however, not specified. It is reported that the opposition members in the National Assembly had also moved an anti-corruption Bill in the National Assembly prior to its dissolution by the President. It is also reported that there were several corruption cases pending in the courts involving Bhutto’s husband, Asif Zardari. The President himself was allegedly involved in corruption in the much publicized Mehran-gate scandal. The President’s action to dismiss the government and dissolve the National Assembly on the above-noted ground, therefore, appears to be unwarranted. In my view, it tantamounts to undue interference in legislative and judicial functions (to the extent that it pre-judges guilt), and it is either intended to influence or will have the likely effect of unduly influencing the judiciary (since it induces belief that the Presidential action was intended to save the judiciary).

The President’s action is not the first such action of its kind. History has repeated itself four times in the short span of a decade. Four governments have by now been dismissed successively on corruption charges among other things. On May 1988, President Zia dismissed the federal government of Mohammad Khan Junejo for "incompetence, corruption and lack of attention to the moslem faith" in exercise of the presidential powers under Article 58 of the Constitution (as amended by the Eighth Amendment Act). He also dissolved the National Assembly at the same time and promised that he would hold new elections according to Article 48 of the Constitution, which stipulated that elections must be held within 90 days. On August 6, 1990, President Ghulam Ishaq Khan dismissed the Bhutto government accusing it of corruption, abuse of power and other acts "in contravention of the constitution and the law." He also dissolved the National Assembly and the Provincial Assemblies under Article 58 of the Constitution. Several court cases specifically on charges of corruption against Zardari were, however, dismissed later. On April 18, 1993, President Ghulam Ishaq Khan once again using the presidential powers under Article 58 of the Constitution dismissed the Nawaz Sharif government charging it with corruption, nepotism and mismanagement. He also dissolved the National Assembly. On May 6, 1993, the Supreme Court of Pakistan, however, overturned President Ghulam Ishaq Khan’s order dismissing Prime Minister Nawaz Sharif and dissolving the National Assembly.

While the historical perspective outlined above clearly explains the need and motivation for the promulgation of the Accountability Ordinance, namely, the eradication of the perennial problem of corruption, its continuation is somewhat unpredictable. As an "ordinance" promulgated pursuant to the special legislative powers granted to the President under Article 89(1) of the Constitution, the duration of the Accountability Ordinance is limited to four months. An ordinance promulgated by the President under this Article has the same force and effect as an Act of Parliament. It, however, stands repealed automatically at the expiration of four months from the date of its promulgation unless it is either approved (or disapproved) by the National Assembly (or withdrawn by the President) before the expiry of that period. An ordinance is required to be laid before the National Assembly and is deemed to be a Bill introduced in the National Assembly. The National Assembly is, however, not obliged to take any action thereon and could let it be repealed automatically. The survival of the Accountability Ordinance in its present or any other form would, therefore, depend on the political will of the National Assembly members that are elected in the forthcoming elections. To the extent that the Accountability Ordinance poses a moral hazard for the newly elected National Assembly members, one can be sure that vested interest is likely to prevail. Electoral accountability would, therefore, be an important prerequisite for the survival of the legislative accountability process sought to be established by the Accountability Ordinance.

Salient Features of the Accountability Ordinance

The Accountability Ordinance, 1996 has two objectives. Its main objective is to provide for the eradication of corruption and corrupt practices from the public offices and its ancillary objective is to provide for effective measures for prosecution and speedy disposal of cases involving corruption and corrupt practices. The effective achievement of these objectives will, of course, depend on the sincere implementation of the law itself.

Substantive Scope

In substance, the Accountability Ordinance applies (from 31 December 1985 onwards) to every "holder of public office", a term which has been defined to include: (1) a Past President and Governor of a Province, (2) past and present Prime Minister, other Federal ministers, advisors and assistants, members of parliament, Auditor General and Attorney General (but does not include federal judges), (3) past and present chief Minister, other provincial ministers, advisors and assistants, members of provincial assembly, and Advocate General (but does not include provincial judges), (4) senior bureaucrats (Grade 20 and above), at both the federal and provincial levels, including those serving on government owned, controlled or administered enterprises, but excluding specifically members of armed forces, other than those serving on government owned, controlled or administered enterprises, and (5) persons giving illegal gratification. The focus of the Accountability Ordinance is clearly on higher ranking members of the bureaucracy and legislatures both at the federal and provincial levels.

The news media appears to have created a lot of political hype and generated a lot of unnecessary skepticism among the general public about the non-inclusion of the current President and Governor of a Province and judges in, and the specific exclusion of the members of the armed forces from, the definition and scope of the Accountability Ordinance. These holders of public office are constitutionally exempt from the purview of laws such as the Accountability Ordinance. Article 248 of the Pakistan Constitution provides that no criminal proceedings can be instituted or continued against the President or a Governor in any court during his term of office. Furthermore, the Pakistan Constitution, in order to preserve the independence of the judiciary, holds the judges of the Supreme Court and the High Courts accountable only through constitutional means. Article 199(3), of the Pakistan Constitution exempts members of the armed forces from civilian jurisdiction as they are governed by special laws applicable to armed forces.

While the application of Accountability Ordinance is limited to senior officials and legislators, the subject matter itself is covered extensively by a broad definition of the term "corruption and corrupt practices". Although defined mainly in terms of financial corruption (acquisition of property by illegal or unfair (non-contractual) means or through abuse of power), the term includes political corruption (committing or causing rigging of elections) as well. The Accountability Ordinance takes an outcome based approach and goes beyond the traditional transaction oriented definition (i.e. the act of giving and taking illegal gratification) to include living unjustifiably beyond one’s means as an offense of corruption and corrupt practice. Accordingly, possession of any pecuniary resources or moveable or immovable property, whether situated within or outside Pakistan and whether owned directly by a person or any of his dependents or benamidars, disproportionate to the person’s known sources of income, which he cannot reasonably account for, constitutes corruption within the meaning ascribed to the term in the Accountability Ordinance.

Institutional and Procedural Framework

The Accountability Ordinance has established an institutional framework (even though the Ordinance may lapse after four months!) to ensure effective measures for prosecution. It provides for a Chief Ehtesab Commissioner (CEC) to be appointed for a term of four years for the purposes of inquiries, investigation and prosecution into allegations of corruption and corrupt practices. The CEC is required to be a person who is or has been a judge of the Supreme Court of Pakistan (Mr. Justice Ghulam Mujadid Mirza has been appointed for the first term). The appointment of CEC officers and staff is required to be made by the federal government with the concurrence of the CEC. The CEC has been given wide powers to carry out his functions: The power to seek the required assistance and call for documents and information relevant to any proceedings pending before him and the power to punish for contempt (normally a power of the court and not a prosecutorial power such as that exercised by the CEC).

A corruption case can only be initiated by the CEC on: (i) a reference received from the appropriate federal or provincial government, (ii) receipt of a complaint, or (iii) his own accord. The CEC, therefore, in effect acts as a clearing agent for all corruption cases sought to be instituted under the Accountability Ordinance. Both the need and efficacy of this prescribed method are questionable. In order to institute a case, the CEC is required to obtain proof and evidence in support of allegations made by the government or complainant even though the Accountability Ordinance has the effect procedurally of shifting the presumption of guilt to an accused person giving or accepting illegal gratification or living unjustifiably beyond his means. The CEC is expected to institute the necessary inquiry and investigation, which inquiry and investigation is required to be completed within one month. Where a prima facie case is made out, the CEC is required to refer the case to the court for trial and to appoint a special prosecutor for conducting the trial. Where no prima facie case is made out, the CEC is required to reject the reference or complaint and record his reasons for such rejection.

While the CEC performs a prosecutorial function, a bench of three High Court judges discharges the judicial function. Even though the CEC does not appear personally as a prosecutor before the bench of the High Court and appoints special prosecutors for the purpose, it would seem to be improper and unwarranted for a judge of the Supreme Court to be making a reference before a bench of the High Court. The High Court cannot take cognizance of an offense under the Accountability Ordinance except on a reference made to it by the CEC. It is required to hear corruption cases on a day to day basis and to dispose of the same within sixty days. The High Court is empowered to order the accused to cease to perform official functions if the trial is delayed on account of the accused. The provisions of the Code of Criminal Procedure are applicable to proceedings under the Accountability Ordinance. Accused may be arrested in certain cases with the prior written approval of the CEC. All offenses under the Accountability Ordinance are non-bailable but detention cannot exceed fourteen days on the whole. An appeal can be made to the Supreme Court within seven days of the judgment by the High Court.

The Accountability Ordinance provides for "effective measures for prosecution" and "speedy disposal of cases involving corruption and corrupt practices". The effective measures for prosecution include the extraordinary powers of the court to forfeit property obtained through corruption and corrupt practices (including forfeiture of property found to be disproportionate to the know sources of a persons income). The court even has the power to freeze the property of an accused (not yet convicted) if it has "reasonable grounds" for believing that the accused has committed the offense. The Accountability Ordinance prescribes mainly penal remedies since corruption is probably regarded as a public offense and not considered as an offense against any one person. It also provides political and administrative remedies. The punishments for corruption and corrupt practices are: (i) imprisonment for a term that may extend up to seven years, (ii) imposition of fines (no less than the gain derived by the accused), or (iii) both imprisonment and fine. Furthermore, a politician convicted for an offense of corruption and corrupt practices is disqualified to contest election or selected as a member of parliament or a provincial assembly and, if already a member of parliament or provincial assembly, subject to removal from office. Also, disciplinary action may continue to be taken against bureaucrats being prosecuted under the Accountability Ordinance.

The "effective measures for prosecution" prescribed by the Accountability Ordinance raise certain fundamental procedural issues. The "speedy disposal of cases" often lead to a derogation of the principles of procedural law. They introduce the notion of summary procedures which always affect the due process of law. The principle of criminal procedural law is to presume innocence unless proven guilty. The principle of civil procedure is also defendant-oriented even though the burden of proof under evidentiary requirements is less stringent. The Accountability Ordinance has the effect of reversing the presumption of guilt and curtailing the evidentiary requirements for proving innocence. Civil remedies -- requiring a lesser degree of burden of proof -- could and should have been introduced additionally for third parties that are affected by corruption and corrupt practices. The Accountability Ordinance does seek to encourage private complaints against corruption and corrupt practices by allowing complainants to be rewarded in case the accused is convicted by the High Court or his conviction is upheld by the Supreme Court. However, this incentive is effectively counter-balanced by the threat of imprisonment of the complainant for up to three years or fine or both in case the complaint proves to be false, mala fide or made with an ulterior motive. It would have been more effective to provide for civil remedies instead of providing for summary criminal procedures which negate the due process of law. The due process of law is an essential part of the justice system no matter how odious the crime or other unlawful activity.

Issues and Analysis

The Accountability Ordinance does not introduce any new substance in dealing with the age-old problem of corruption and corrupt practices. The subject matter has been dealt with in various legislations from time to time from the inception of Pakistan. Substantively, at the federal level, the Pakistan Penal Code, 1860 (Sections 161-165) contained specific provisions relating to bribery and other such offenses by public servants. This was in fact preceded by the Public Servants (Inquiries) Act, 1850 and followed by the Prevention of Corruption Act, 1947 (which, inter alia, deals with offenses by public servants, presumption where public servant accepts gratification other than legal remuneration; declaration of assets; and possession of property disproportionate to know sources of income). Several provincial laws and regulations complement the federal laws: For example, the Sind Prevention of Bribery and Corruption Act, 1950, the West Pakistan Anti-Corruption Establishment Ordinance, 1961, the Punjab Anti-corruption Establishment Rules, 1985. In addition to public servants (bureaucrats), anti-corruption measures were also sought to be applied to other holders of public offices (e.g. members of legislative assemblies) through the Holders of Representative Offices (Punishment for Misconduct) Order, 1977 and Parliament and Provincial Assemblies (Disqualification for Membership) Order, 1977.

The Accountability Ordinance does not add much to the existing institutional or procedural framework to deal with corruption. The establishment of the office of the CEC is was in most part unnecessary. The role that it is intended to play is already being performed by government agencies such as the Federal Investigation Agency (FIA) established under the Federal Investigation Agency Act, 1974 and the Wafaqi Mohtasib (Ombudsman) appointed under the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983. While the FIA is required to perform investigative functions, the Ombudsman is mandated to diagnose, investigate, redress and rectify any injustice done to a person through maladministration. The term "maladministration" includes: a decision, process, recommendation, act or commission which , inter alia, involves the exercise of powers, or the failure or refusal to do so, for corrupt or improper motives, such as, bribery, jobbery, favoritism, nepotism and administrative excesses. The CEC, FIA and the Ombudsman, therefore, clearly have overlapping functions -- particularly the CEC and the Ombudsman. Consequently, the costs associated with establishing and maintaining the additional institutional structure of the office of the CEC appears to be totally unjustified.

Procedurally, the Pakistan Criminal Procedure Code has been amended several times in the past (see, e.g., The Pakistan Criminal Law Amendment Act, 1958) to deal with the problem of corruption by, inter alia, appointment of special judges and/or tribunals from time to time to handle corruption cases. The Accountability Ordinance relies on regular courts and judges even though it has elevated the adjudication to a bench of the High Court.

Criticism

The current manner in which the process of accountability is being carried out is, in my view (i) unnecessary (and perhaps, if I may, for the sake of provoking a discussion, go so far as to suggest, even unjustified and illegal), (ii) improper, and (iii) inadequate:

Conclusion and Recommendations

Despite the above-noted weaknesses and criticism of the Accountability Ordinance, the objectives thereof remain valid and need to be pursued vigorously. Although the Accountability Ordinance does not offer anything substantively new, it does make an important contribution in that it targets the top echelon of the bureaucracy and politicians -- which is presently considered to be either the source of corruption and corrupt practices itself or the immunity system that shields corruption and corrupt practices in the body politic. Moreover, the new format provided by the Accountability Ordinance may give fresh impetus to fight an old cause with renewed vigor. One, therefore, hopes that the anticipated legislature would not allow the Accountability Ordinance to lapse and take constructive measures, taking into account the above-noted comments and criticism, to regularize and renew the same with necessary modifications. The new legislative assembly would do well to introduce the notion of civil remedies (i.e. personal accountability under civil law in addition to social accountability under criminal law). The advantage would be to not only obtain a greater number of convictions and to recover more stolen assets but also to consequently ensure additional deterrence. Ultimately, however, it is not the regularization and adoption of the legislation alone, with or without modification, but the sincere implementation of the same that would be an important step towards the achievement of its objectives. Even the proper implementation of the law would only be a partial preventive tool and not an effective overall cure for the problem of corruption.

An integrated law and development approach is essential to combat corruption and promote accountability meaningfully and effectively. A socio-economic incentive system for honesty needs be created along with an exemplary deterrent system of anti-corruption laws. One has also to consider the behavioral aspects of corruption (basically need and greed) in order to prescribe a viable remedy. Realistic wage reforms should be introduced to take care of the basic needs of public servants in order not to at least give them the reason or excuse for being dishonest. This could perhaps be easily achieved within the existing revenue resources by the introduction of transparency in the payment of salaries of public servants and the trimming of wasteful public expenditures. Overall civil service reforms to curtail bureaucratic power are also essential. As is well known "power corrupts and absolute power corrupts absolutely." Wage reforms should, therefore, be coupled with the curtailment of discretionary powers of the bureaucracy to reduce the element of greed in corruption and corrupt practices. Furthermore, the exercise of political powers should also be streamlined through the proper regulation of such powers.

The eradication of corruption and corrupt practices is a mammoth task that requires the utilization of all available means of ensuring accountability: Legislative, administrative, and judicial accountability through promulgation of anti-corruption laws coupled with strict application of such laws through courts and administrative agencies such as the office of the Ombudsman. But effective use of the above-noted methodologies is required, as noted above, to be complemented by socio-economic prescriptions of administrative and political reforms. One other important method to combat political corruption that ought not to be overlooked is electoral accountability. It is, therefore, essential that the political process should be allowed to continue uninterrupted. Dismissal of successive governments and dissolution of legislative assemblies has continually disrupted and undermined the electoral accountability process in Pakistan. Democratic principles dictate that elected representatives be held accountable electorally by the peoples of Pakistan themselves rather than through prosecution by an unmandated "care-taker" government. After all, a care-taker government, unlike a government formed by elected representatives which is subject to periodic accountability by the electorate, is not subject to any process of accountability itself. Therefore, above all, in laying down an integrated and consolidated framework for accountability in Pakistan as suggested above, the new parliament ought to simultaneously reconsider the repeal of the Eighth Amendment of the Constitution of Pakistan which appears to provide ample scope for abuse of power and as such corruption without any accountability at all.