The entitlement of our rulers

Legal eye

The writer is a lawyer based in Islamabad.

Can corruption or abuse of authority be checked in a country where there is compete consensus across its ruling elite that accountability is a great idea so long as it doesn’t arrive at one’s doorstep? Can there be fair, just and across-the-board accountability when our prime minister publicly wags his finger at NAB, threatens to take to task its officials who dare to poke their noses in the ruling party’s backyard and favoured projects and signals to bureaucrats executing such projects to march on as directed without fear of accountability?

What Ayn Rand wrote in ‘Atlas Shrugged’ in 1957 needs repetition: “When you see that trading is done, not by consent, but by compulsion – when you see that in order to produce, you need to obtain permission from men who produce nothing – when you see that money is flowing to those who deal, not in goods, but in favours – when you see that men get richer by graft and by pull than by work, and your laws don’t protect you against them, but protect them against you – when you see corruption being rewarded and honesty becoming a self-sacrifice – you may know that your society is doomed.”

While in exile, PPP and PML-N leaders seemed contrite. The Charter of Democracy was their public pledge to do things right if given a chance. Through its clause 13(d) they resolved “to replace [the] politically motivated NAB with an independent accountability commission, whose chairman shall be nominated by the prime minister in consultation with the leader of opposition and confirmed by a joint parliamentary committee with 50 percent members from treasury benches and remaining 50 percent from opposition parties in the same manner as appointment of judges through transparent public hearing.”

At the time both PPP and PML-N were cut up about NAB targeting select politicos under General Musharraf’s direction. They were right. NAB was on a witch-hunt. The modus operandi was simple: It arm-twisted the elite, laundered and declared clean those who agreed to support or serve Musharraf and persecuted those who didn’t. In that sense it went further than what the Ehtesab Bureau started under Nawaz Sharif’s direction; the Ehtesab Bureau singularly focused on hounding the PML-N’s political opponents; NAB did both, it ran with the hare and hunted with the hounds.

The Charter of Democracy was the PPP-PML-N ‘let-bygones-be-bygones’ moment. Musharraf was the joint enemy and NAB was his instrument of oppression. When back in the saddle, the PPP proposed the Holders of Public Office (Accountability) Bill in 2009. This was meant to be an anti-accountability law with provisions designed to function as a permanent NRO to protect public office holders instead of holding them answerable. It seemed in sync with the PPP’s general philosophy under Zardari: let everyone make hay while the sun shines. But public mood had soured with the NRO debate. The bill couldn’t be transformed into law.

During the PPP’s time in power, NAB remained largely dysfunctional (pending appointment of NAB chairmen) or complicit with the ruling regime. The media and a suo-motu happy Supreme Court assumed the mantle of accountability. Those accused of corruption faced media trials. There were no convictions by trial courts. Instead comments made by judges during suo-motu hearings beamed by the media as ‘breaking news’ convicted people in the public eye. The SC itself ordered the arrest and prosecution of the accused. There grew the false sense that a righteous SC-media duo could be a substitute for a functional NAB.

As the sun set on the Iftikhar Chaudhry court and judges alive to the need for due process took over, this replacement theory thankfully began to wither. But the media-SC combine did bring the need for accountability to the centre of our public discourse. Whether it was the NLC scandal and General Kayani stepping in to shield the accused generals, lack of self-accountability within the judiciary or impunity enjoyed by ruling politicos and their minions within the bureaucracy, there grew a sense amongst the public that public office-holders’ lack of integrity together with absence of accountability is eating us up as a state and society.

The PML-N went into the 2013 general election making fantastic claims about ‘dragging the corrupt through the streets of Pakistan’. Here is part of what the PML-N 2013 Election Manifesto promised on corruption and accountability:

“Corruption has reached record heights in recent years. The PML-N government will adopt a zero tolerance policy for corruption. It will take every measure to ruthlessly stamp out corruption wherever found. An autonomous National Accountability Commission which is administratively, functionally and financially independent, with comprehensive powers to carry out across-the-board accountability of all holders of public offices in a fair, impartial and transparent manner will be established.

“The most effective way to stop corruption is by evolving a transparent and open system for every government department and organization, combined with a system of incentives for integrity and honesty.

“To reduce opportunities for corruption and also to ensure decisions on merit, existing laws and rules will be amended to withdraw all discretionary powers wherever possible/practical and instead provide for exercise of powers in a fair, transparent and equitable manner.

“To promote a culture of accountability, integrity and transparency, ‘whistle-blower’ protection law (public interest disclosure) will be enacted for providing safeguards to persons who expose corruption, wrongdoing and other illegalities.

“Procurement Laws and Rules will be strengthened, requiring all public sector organizations to publish all tenders and related bidding documents online, post their development/procurement budgets on their websites, along with details of expenditure over one million rupees, enabling any person to ‘follow the money’…”

Having already crossed the halfway mark, where is the PML-N’s National Accountability Commission law and the promised ‘administratively, functionally and financially independent’ body stamping out corruption ‘ruthlessly’? Why has no whistle-blower protection law been adopted in Punjab, Balochistan or the centre where the PML-N rules? What changes have been made in our procurement law to require public sector organisations to place procurement budgets and bids received online to enable the public to ‘follow the money’? Hasn’t lack of transparency been the key concern of all regarding the CPEC?

Which laws and rules has the PML-N amended in the centre, Punjab or Bal0chistan to withdraw discretionary powers? Is it not true that the federal government is pushing the Securities and Exchange Commission to amend the Public Sector Companies (Corporate Governance) Rules? These rules adopted in 2013 sensibly regulate the discretion vested in the government in relation to boards of public sector companies. Instead of streamlining discretion further, why is the Sharif government trying to regain blanket powers to appoint and remove board members in public sector entities?

The question isn’t whether or not NAB is doing a good job. (There is general consensus that NAB is riddled with problems: legacy issues, bad ethos, untrained investigators, absence of rules structuring exercise of discretion by NAB, absence of effective checks against abuse of arrest, inquiry and investigation powers etc.) The question is: why has the PM done nothing so far to introduce institutional reforms to either fix NAB or replace it with a credible and functional watchdog? Is his harangue against NAB not a naked attempt to interfere with whatever little administrative and functional autonomy NAB enjoy in practice?

The chairman of NAB has a fixed tenure of four years and can only be removed by the Supreme Judicial Council. If NAB abuses its powers, as it often does, any official being victimised needs to take the matter to court like anyone else. The PM has no authority under law to direct NAB. That he chose to order NAB and its officials around is evidence that rule of men continues to trump rule of law in this country. The test of our PM abiding by his 2013 manifesto would be the creation of an accountability watchdog that even he cannot threaten or control.

Email: sattar@post.harvard.edu