Being on the same page with all state institutions, the PTI government is well positioned to lay the foundation of a single anti-corruption agency with broader political and bureaucratic ownership by revising the 17-years-old national anti-corruption strategy.
Pakistan’s signing of the UN Convention against Corruption (UNCAC) in 2003 and its ratification in 2007 and the 18th Amendment giving more autonomy to the provinces have all rendered the 2002 national anti-corruption strategy (NACS) redundant.
A strategy provides a goal and a set of actions, while the law provides a tool to achieve that. An institution’s progress is conditional to its successful pursuit of the strategic implementation plan. In the case of the National Accountability Bureau (NAB), the reverse was done. The law was promulgated in 1999 while the NACS was evolved in 2002.
The UNCAC that was developed one year later is a legally binding universal anti-corruption instrument. The convention covers five main areas: preventive measures, criminalisation and law enforcement, international cooperation, asset recovery, and technical assistance and information exchange. The convention covers many different forms of corruption, such as bribery, trading in influence, abuse of functions, and various acts of corruption in the private sector.
Besides having linkages with the UN convention, the revised NACS can also provide for the interrelation between federal and provincial anti-corruption establishments, and the internal accountability mechanism of other institutions like the military and judiciary that so far are outside the strategy domain.
The strategy can also facilitate the development of self-accountability instruments in other institutions and link them with the national strategy. A cross learning of each others’ anti-corruption mechanism can also be done.
In 2002, the NACS was launched when Gen Pervez Musharraf was the president and Lt-Gen Munir Hafiez was the chairman of NAB. Though the strategy is not time-bound, it has never been reviewed during the last 17 years. It has an implementation action plan whose different targets were spread over five years. The implementation was to be monitored by a committee headed by the
chairman of NAB and including the secretaries of important federal ministries like finance as well as four chief secretaries. They were to meet at least four times a year to streamline the implementation process. To date, there is no report to analyse if that implementation was completed or whether and what hurdles there were. It is ironic that the NACS identified the future parliament, politicians and bureaucrats as potential risks in the non-implementation of the strategy.
The National Accountability Bureau was carved out of specific provisions of the FIA (Federal Investigation Agency) Act 1974. These were related to offences like a public servant taking gratification, taking gratification to influence a public servant, punishment for abetment by a public servant, a public servant unlawfully engaged in a trade and criminal breach of trust by a public servant, or banker or merchant or agent.
The undercurrent in the NACS is to justify the creation of NAB as a top anti-corruption agency because of the failure of FIA and provincial anti-corruption establishments. It says: “Awareness of the issue of corruption has existed, as evident from anti-corruption drives undertaken from time to time. Legal initiatives started with the Prevention of Corruption Act 1947. Laws like Public Representatives (Disqualification) Act 1949 and the Elected Bodies (Disqualification) Ordinance 1959 were introduced to disqualify corrupt public representatives from holding public office. However, they were perceived as exercises in political victimisation.”
Anti-corruption agencies created after Independence, the NACS added, include the FIA that replaced the Pakistan Special Police Establishment (PSPE) in 1975. The provincial ACEs (initially the West Pakistan Anti Corruption Establishment formed in 1961) were established after the breakup of one unit in 1970. Hampered by complicated procedures and political interference, these organisations have proved entirely ineffective. In fact, they are themselves infested with corruption and lack of capacity for the task assigned to them.
“The current anti-corruption structure is the result of decisions taken by exigency rather than considered policymaking. Therefore, it is riddled with issues of unsustainable overlap and inconsistencies, particularly between NAB and FIA; and that the system is entirely enforcement focused; And no agency has responsibility for anti-corruption awareness and prevention.”
The strategy also flagged conflict of interest legislation saying: “The 1997 manifesto of the Pakistan Muslim League promised to pass a conflict of interest legislation, but nothing was done. As a result, one of the most common sources of mega corruption has been the numerous instances of changes in laws or government decisions, which benefit the business or privacy concerns of
politicians belonging to current government regimes as well as to hurt the interests of their competitors.”
It is unfortunate that the issues of conflict of interest legislation and duplication of function between NAB and FIA are not yet resolved and are still simmering in the corridors of power. Another law to be enacted was to protect whistle-blowers on in-house corruption in public and private entities. So far, the only such legislation has been done in Khyber Pakhtunkhwa. There is no formal witness protection system in place.
However, there have been good developments also such as the constitutional right to information; federal and some provincial legislation has brought in further transparency. Consumer protection laws are there in all provinces and at the federal level. Some provinces have food authorities working to ensure better compliance with standards. Similarly, all lawmakers deposit the details of their assets with the Election Commission.
NAB has been advocating for a single anti-corruption establishment at the federal level that has linkages with provincial anti-corruption bodies. However, after the bifurcation of the federal and provincial functions, it is only pertinent that the revised strategy addresses this issue.
Another issue was that of NAB being overseen by the president. The strategy recommended that it should be broad-based by the now-defunct National Security Council. Another option was a Senate committee.
However, the NAB website in its FAQs claims: “Chairman NAB being head of an autonomous Institution reports to none. The provisions of [the] NAO (National Accountability Ordinance), does not lay down any reporting system except the Annual Performance Report, which is mandatory to be presented to the president of Pakistan by 30th March, every year, regulates the investigation and prosecution process in the NAB.”
There is an exemption for the judiciary. However, a review conducted by UNCAC in 2017 says: “The Supreme Judicial Council oversees the accountability of judges; however, during the country visit, it was clarified that the council does not meet regularly.”
Internationally, NAB wants its performance to be measured by the number of investigations it launched and the number of investigations completed. It has 1200 permanent staff, including 135 investigators and 60 prosecutors handling 600 cases annually.
NAB’s 2017 annual report says that it received a total number of 26,551 complaints. Around 456 inquiries and 215 investigations were conducted, while 199 references were filed in accountability courts. The conviction rate of NAB in the courts stood at 70.8 percent. Since 1999, it has recovered Rs295 billion while its total expenditure remained around Rs18 billion. It’s a substantial amount, but given the fact that the projected amount of corruption is huge, this figure seems peanuts.
It will be interesting to see NAB’s performance judged from the prism of the NACS and given a new implementation plan for the next five years by the government in the revised strategy.