The PTI’s good governance?

Legal eye

The writer is a lawyer based in
Islamabad.

When the PTI emerged as a popular mainstream party in 2011/12, its appeal was twofold. One, Imran Khan had earned the reputation of being a man of impeccable personal integrity. With him heading the PTI, the assumption was that the party leadership would be incorruptible. And two, the party was a system outsider and carried no baggage – unlike its competitors, which had been tried, tested and found wanting. Not having made dirty political compromises to grab power or entrench it, the PTI was seen as a prospective agent of change.

When the PTI launched its large-scale dry cleaning business post the massive rallies of 2011, by inducting politicos from other parties who were tried, tested and found wanting (‘electables’ they were politely called), those hungry for change gave Imran Khan the benefit of doubt. A fish rots from its head, we were told. So long as IK was at the head there was no cause for concern. Accepting electables was an electoral necessity. But those joining the PTI were joining on IK’s terms and would be ousted if they didn’t fit into the party’s clean and principled politics, IK said.

When the PTI, the system outsider, formed government in KP, it finally had the opportunity to put on display its model of good governance and clean politics. This model would then be exported to the rest of the country when people of other deprived provinces began to realise what they were missing and voted the PTI into power at the first opportunity.

The party started out well. It appointed honest and efficient bureaucrats to top jobs (ie chief secretary and IGP) with the resolve to let them function without political interference. It adopted a Charter of Good Governance (see www.khyberpakhtunkhwa.gov.pk) and accountability formed a core value. “Public Office Holders shall be accountable for their decisions and actions to the public and their acts and omissions shall be open to scrutiny by independent and autonomous mechanism and institutions of accountability”, says the charter. It has many components. But let’s focus on three that were given effect through laws that have recently been amended: local government, right to information and accountability, and anti-corruption.

This week the director general of KP’s Ehtesab Commission resigned over the text of the Khyber Pakhtunkhwa Ehtesab Commission (Third Amendment) Bill, 2016. He did the honourable thing. The proposed amendments seek to destroy the system of checks and balances carefully put in place through the original law (that the PTI and IK had been very proud of), rob the Ehtesab Commission of its functional autonomy, dilute the powers of the DG and distribute them between the DG and the commissioners in a manner that makes their exercise easy to manipulate by ruling political masters.

When the law was being conceived and drafted, the instructions from the PTI were clear. The Ehtesab Commission was to be an autonomous body, free from the clutches of the ruling government and capable of holding all public office-holders to account, including the chief minister. How do you infuse autonomy along with checks against its abuse in an accountability body within the parliamentary system where there exists an overlap between the executive and the ruling party within the legislature?

The bright and focused KP chief secretary at the time, Shehzad Arbab, and his team (including the effable and driven Director Anticorruption Fayaz Ali Shah) debated the issue for hours at stretch with the team helping with the modelling and drafting of the law. (That the KP CM couldn’t work with Arbab, who had to return to the centre, was an early sign of things to come). PTI leaders emphasised excluding any role of the executive or legislature in the Ehtesab Commission’s functioning, to prevent expediency from trumping accountability.

The top tier of the Ehtesab Commission, comprising five commissioners, was conceived as a policymaking and oversight forum barred from interfering in day-to-day operational matters. This collegiate body was meant to be the buffer between the directorate general headed by the DG and the executive/legislative authorities of the province. To prevent political interference through appointments, an independent Search and Scrutiny Committee was created for the sole purpose of finding appropriate individuals to act as commissioners, DG and prosecutor general.

A legislative committee with equal members from the treasury and opposition would confirm nominees of the Search and Scrutiny Committee or reject them with three-fourths majority. The government had no role in appointing officials to the commission or determining their conditions of service. The law created various wings including investigation, internal monitoring and prosecution etc, and the DG was empowered to act on the recommendations of the directors and the prosecutor general heading their respective wings.

The Internal Monitoring Wing was designed as the internal watchdog and its director was to report cases of misconduct directly to the commissioners, who were empowered to enquire into allegations and act against commission officials. The purpose of this structure was to separate powers vested in various tiers of the organisation while incorporating checks and balances so that the accountability body could act with alacrity on the basis of the professional opinion of investigators and prosecutors without its powers being subject to manipulation or abuse.

The latest amendments change all of that. The commission’s executive powers stand diluted and distributed – ie taken away from the DG and vested in five commissioners, thus dragging a policy forum into operational matters. The DG will now be unable to exercise any meaningful authority without the blessing of the commissioners. The commissioners won’t just prescribe service regulations but also appoint staff directly, previously done by the DG on the HR Wing’s recommendation. In short, the commission stands robbed of its autonomy.

The government will now determine the salary and service conditions of the DG, the prosecutor general and commission staff; the commission will be unable to preserve documentary evidence for investigation purposes beyond a 15-day period; no one will be arrested without the permission of commissioners, who will also have a veto over whether to frame charges against anyone after an investigation; and no legislator will be arrested without prior notice to the chair/speaker of the relevant legislative body and no civil servant will be arrested without prior notice to the chief secretary.

Through this amendment, the KP government has created what IK promised he would abolish: structural arrangements to ensure that the ruling elite can make hay with impunity without ever being held to account. But this is not an isolated incident of regressive legislation by PTI-led KP. The KP Right to Information Act, 2013 was celebrated as a major achievement of the PTI. Through the KP Right to Information (Amendment) Act, 2015, the provincial assembly, its members and secretariat were excluded from the scope of this law.

The KP Local Government Act, 2013 was celebrated as a major achievement of the PTI. Pursuant to it, local government elections were held on May 30, 2015. Once results came in and the PTI government figured that it might struggle if it were unable to exercise dictatorial control over council members, Section 78A was snuck into the law on August 24, 2015, six days before elections of Nazims and Naib Nazims, through the KP Local Government (Third Amendment) Act, 2015.

Section 78A replicates the infamous Article 63A of our constitution – which handed party heads dictatorial control over party members in parliament. Under 78A any council member who doesn’t abide by the directions of the party head is liable to be disqualified. Didn’t the PTI make a song and dance about the need for internal party democracy? Didn’t it take jibes at ‘hereditary’ parties loath to effectively “devolve political, administrative and financial responsibility and authority to the elected representatives of local governments” as required by Article 140A?

Principles are only worth anything if upheld when it is most inconvenient to do so, they say. The proof of the pudding is in its eating, they say. If the fish only rots from its head, as they say, how does one explain the happenings in PTI-led KP?

Email: sattar@post.harvard.edu