There is a need to restructure anti-corruption departments on modern lines
By Usman Saeed
A glance at the efforts to develop anti-corruption institutions indicates that the ruling regimes, barring exceptions, have been tinkering with the anti-corruption departments, primarily with political opponents in focus. The anti-corruption institutions of the early 1960s took cognizance of the crime even if ‘approved’ by the ruling masters. The Prevention of Corruption Act-1947, Public Representatives (Disqualification) Act 1949(repealed), the Elected Bodies (Disqualification) Ordinance-1959 (Repealed), etc. were mostly labelled with exercise in victimisation.
Anti Corruption Establishments (ACE) were formed in all the provinces in 1970 and the FIA in the capital in 1975. These establishments are in existence for over four decades now with low key development priority, thus no meaningful results can be shown by these bodies to control corruption. ACEs are victims of political and bureaucratic controls. Poor investigation capacity, under-sourcing and lack of operational freedom have virtually rendered these outfits ineffective. The FIA mainly looks into immigration, financial crimes, cyber crimes and now anti-terrorism. The multiple mandates, politico-bureaucratic intrusions in the form of Federal Anti Corruption Committee (FACC) and host of other organisational difficulties have made the functioning of FIA an uphill task.
Had we kept the development of anti-corruption bodies on our national agenda by allocating them top-class human resource, sufficient funds, and freedom in decision-making, the menace of corruption would have been significantly curtailed. The Ehtesab Bureau, which was formed in 1997, supplementing the Ehtesab Commission, was the first serious effort aimed at combating corruption in the country. The Bureau assumed the responsibility of investigation while prosecution was entrusted to the commission. Ehtesab law was a strong law where the prosecution of cases at two tiers, i.e. Ehtesab Courts under the judges of the High Courts in each province with right of appeal in the SC was a far better and speedy trial process than the three-tier prosecution approach followed by NAB under National Accountability Ordinance (NAO).
The Ehtesab Bureau investigated a significant number of White Collar Crime (WCC) cases and its performance was by and large commendable as evident from the statistics of high profile prosecutions it undertook in a short span of time. It traced assets stashed abroad for the first time in the history of Pakistan and exhibited foreign documentary evidence on ill-gotten assets in trial courts. Unfortunately, Ehtesab Bureau was dismantled due to military takeover on October 12, 1999. The political opponents labelled this bureau as infested with agenda against political opponents. The Ehtesab Act-1997 was passed by the National Assembly with a two-third majority. It had all the merits and political support that justified its retention with certain amendments necessary for modernisation/functional improvements.
The NAB was established after Ehtesab Bureau. It was provided management on deputation from the armed forces. The bureau faced multifarious challenges in the formative years as it neither had the trained workforce of its own for investigating white collar crimes nor the capacity to handle substantially large portfolio of corruption/corporate fraud cases reported by the public as well as inherited from the Ehtesab Bureau. The NAB took the first challenge of recovery of defaulted loans. A list of top bank loan defaulters compiled by various banks/institutions was given by the State Bank of Pakistan to NAB for a countrywide crackdown. The nation witnessed arrest of influential personalities and retention in NAB custody till full/part payment of the defaulted loans. A handful of defaulters, however, managed restructuring of their defaulted loans. The drive against the loan defaulters was highly effective and widely appreciated by the public.
The hierarchy of NAB was conscious of the necessity for incorporating modern anti-Corruption Concepts and techniques in the system. For this, foreign consultants were engaged for organisational review. It succeeded in incorporating new initiatives in the orbit such as Awareness and Prevention Division, integration of FIA’s Anti-Corruption and Economic Crime Wings, Research and Training Wing, IT Wing, Logistics Wing, Security wing and a mini secretariat for National Anti-Corruption Strategy (NACS) Committee to oversee implementation of Governance Reforms in the Country. The FIA transferred over 30 percent of their workforce to NAB after thorough scrutiny of their moral and professional reputation.
The transfer of FIA workforce also brought-in voluminous workload of Corruption Cases to the NAB. But as it was still at a nascent stage, the present government reversed the decision. The SC announced landmark judgment in favour of NAO-99, with directions to remove certain anomalies in the ordinance. It was the first legal validation of NAO by the apex court of Pakistan. The blow to the potency of NAB’s operations came in year 2001-02, when NAB’s power to take cognizance of bank default cases was clipped through an amendment moved by the federal government where NAB could deal with the default cases when referred by a committee headed by the governor SBP only. A final payment notice to the bank defaulter by the SBP was made mandatory. The net outcome was an abrupt decline in the bank default prosecution cases by the NAB, leading to loss of deterrence value of the bureau.
Allegations of favouritism in cases against the pro-government politicians could not be defended in the public. Pro-Government politicians were openly accused by the civil society to be the beneficiaries as complaints, probes, inquiries, investigations prosecution cases against them were either not pursued with due competence or were shelved. The bureau’s anti-corruption operations against businessmen and politicians were drastically curtailed after November 2002 general elections. The corrupt bureaucrats, however, came on top of the agenda for criminal prosecution.
External influence/intervention leads to compromise, thus affecting the resolve to combat corruption. Shortfalls in investigation and prosecution skills also had the telling effect on organisational output that continued to decline. Perpetual delays in inquiries, investigations and prosecution in courts resulted in delays. Voluntary return and plea-bargaining concepts, although prevalent in many foreign countries, were also viewed by the public as instruments of compromise with the offender. The worst offender could get released after paying 1/3rd amount as the first instalment in case of plea bargain. The details of voluntary return cases never became public. The closure of inquiries, investigations, and withdrawal of cases from the courts remained a grey area throughout. The formulation of the first National Anti-Corruption Strategy (NACS) for Pakistan with the assistance of foreign specialists was good work that never got the attention it deserved. Resultantly, the reforms agenda for National Integrity System was not pursued by various stakeholders with due vigour.
The bureau also undertook research and analysis work on systemic weaknesses in governance; it trained prosecutors in prosecutorial skills for the first time in Pakistan. It worked as apex body for drafting anti-money laundering bill and ratification of International Convention against Corruption (ICAC). The NAB also worked as an institution to promote reforms in the provincial ACE’s of all the provinces, including Ehtesab Bureau of AJK. It conducted numerous sessions with the concerned provincial ACEs and drafted changes in their charter of assignments.
The removal of bottlenecks is the best approach rather than dismantling the entire system that demonstrated the capability far better than any other contemporary anti-corruption bureau in the SAARC region. The selection of directors and others strictly on the basis of high moral and professional standards can be an effective firewall against corrupt practices within the bureau. The need for introducing a check and balance system, involving the civil society, media, and judiciary to oversee closed cases will have a check on the discretionary powers of the competent authorities. Likewise, selection of prosecutors after carrying out consultations with various bar councils will have a salutary impact on the performance of the bureau. Introspection of the present workforce and elimination of non-professional officers in the bureau can also enhance their efficiency.
The government should re-evaluate the NAO, its mandate and organisational shortfall. Any effort to dilute the law will be contrary to the spirit of accountability. A group of specialists from the judiciary and the executive can identify human resource of weak moral and ethical standards, allegedly involved in closure and delays of inquiries, complaints, investigations, prosecutions on external influences or vested interests. This screening exercise should also be undertaken for FIA and Provincial ACEs for across the board effects. We should also set up a national anti-corruption authority, headed by Chief Justice of the SC (retired), with chairman FBR, Accountant General, Auditor General, Chairman PAC, Chairman JCSC, Federal Secretary Cabinet/Establishment, and an MNA each from the main political parties and few members from the civil society to act as a body to oversee federal anti-corruption institutions.